P (PLP)

(2) Have the cases of Jagabandhu De v. Akhoy Kumar Sil (Supra) and Baroda Prosad Sukul v. Durga Prosad Roy (Supra) been correctly decided. This being a revision case, the whole case was ordered to be placed before a Full Bench. As stated already, this case was sent to this Court after Partition, as in view of the Bengal High Courts Order, 1947, it has to be disposed of by this Court. The Court of origin is in this Province and this case was being pending on the date of the Partition. Under Article 13; paragraph 3, of the High Courts (Bengal) Order, 1947, all proceedings pending on the appellate side of the High Court in Calcutta, immediately before the appointed day, shall, where the Court of origin is, as from that day, situated in the Province of East Bengal, stand transferred by virtue of the Order to the High Court of East Bengal. Mr. Nagendra Nath Chowdhury, appearing on behalf of the opposite parties, has raised a preliminary objection to this case being heard by a Full Bench of this Court. His contention is this: The above 'mentioned provision in Article 13 (3) begins with the word "subject to the preceding provisions of this Article", and in Article 13 (2) (a) "any proceedings which, immediately before the appointed day, are pending in the High Court it? Calcutta on it original side, including any proceedings then pending in the said High Court as a Court of reference, shall be heard and determined by that Court". This being a reference to a Full Bench by Division Bench of the Calcutta High Court, should, as a Full Bench reference be regarded as coming under Article 13 (2) (a), The revision case itself has, no doubt, to be heard by this Court under Article 13 (3), but that should be by a Division Beach. The composition of the present Bench will merely result in it's decision having the force of a decision of a Special Bench and not of a Full Bench. This preliminary objection, in my opinion, must fail. Assuming that the words "any proceedings then pending in the said High Court as a Court of reference " in Article 13 (2) (a) of the Bengal High Courts Order, 1947, refer to all references pending in the Calcutta High Court, this case cannot be considered to be a case pending before that High Court as a Court of reference. The ease it a Civil Revision case which was before that High Court on its appellate side and the mere fact that the Division Bench, before which it carne for hearing, directed its being place before a Full Bench, does not alter its character and turn it into a case of reference to the High Court. It still retains the' character of a Civil Revision case, particularly when the entire placed before the Full Bench. It is rightly conceded that case has, in view of Article 13 (3) of the said Order this Court and that was the reason why the, Court sent the case down along with other cases. In my opinion, this has to be heard by a Full Bench: As regards the expression "date of the suit" in proviso (1) to section 36 (1) of the Bengal Money Lenders Act, the contention of the learned Advocate for the petitioner is that it refers either to the date on which the suit is filed by a borrower under section 36 (1) or to the date of a "suit to which this Act applies'". As regards the latter expression, it is contended that the fact that its definition includes an execution proceeding does not mean that an execution proceeding itself is a suit to which the Act applies. It is argued that, if an execution proceeding is started alter the crucial date, the suit in which the decree sought to be executed, was passed, becomes a suit to which the Act applies, and that, therefore, in this case the bond of 1924 should have been re‑opened as it was within 12 years of the date on which the suit to enforce it was filed. According to the learned Advocate, therefore, the decisions in Jagabandhu De v. Akhoy Kumar Sil (supra) 'and in Baroda Prosad Sukul v. Durga Prosad Roy (supra) are not correct. In my opinion, these contentions must prevail. In section 2, clause (22) of the Bengal Money Lenders Act, while the word "means" is used in respect of a suit or a proceeding instituted or filed on or after the first day of January. 1939, with regard to the proceed ings in execution, the word used is "includes". This distinction is significant and, in my opinion, it indicates that a suit pending on or filed after 1939, and a proceeding other than an execution proceeding similarly pending or instituted can be regarded as suits to which the Act applies, but, in the case of an execution pro 4eding, the suit to 'which the Act applies is not the execution proceeding itself but the suit to which it relates. If the intention of the Legislature were that the execution proceeding itself should be regarded as a suit to which the Act applies, then the wore "proceeding" would have sufficed and a mention of is proceeding in execution" would have been unnecessary, and in any case the word "means" would have governed execution proceedings also. This becomes evident when the language of the second proviso to section 36 (1) is taken into consideration. That proviso is to the effect that the Court shall not do anything which affects any decree of a court other than a decree in a start to which this Act applies and which was not satisfied by the first day of January, 1939. Here the expression "suit to which this Act applies" must necessarily be taken to mean the suit in which the decree was passed'. Then again in subsection 6 (a) (i) of section 36, under which the present petition was filed, it is stated that: "the Court which, in a suit to which this Act applies, passed a decree which eras not fully satisfied by the first day of Jan uary, 1939, may exercise the powers conferred by subsections (1) and. (2) in any proceedings in Execution of such decree." Here it is clear that the suit; to which this Act applies, is not the execution proceeding itself, but the suit in which the decree sought to be executed on or after the 1st January 1939, was passed.' It, therefore, appears to roe that the expression "suit to which this Act applies" refers' to suits pending on or filed after the first of January, 1939, and, to suits disposed of before that date in respect of which execution proceedings were pending, on or filed after that date. In this view, the date of the suit mentioned in the first proviso, so far as the present case is con corned, is the date of the suit in which the bond of 1924 was enforced i.e., the date of the suit filed in 1931. As for the decision in Jagabandhu De v. Akhoy Kumqr Sil, (supra) relied on by the Subordinate Judge, I consider that the view taken in it is not correct. There it was held that "the suit to which this' Act applies" is identical with the application in execution, but the significance of the words " means " and includes In the definition considered with the second proviso and section 36 (5) (a) adverted to above does not appear to have been kept in view. That this aspect of the matter was not placed before the learned Judges is clear from the following observation in the Judgment: " The above seems to be the natural interpretation of the provisions of subsection (1) of section 36, read with, the proviso, and no valid reason for any other view was put forward on behalf of the respondent beyond stressing the phrase suit by the parties and urging that this would only refer to the original suit

But the real answer to this contention is that the phrase by the parties in the proviso under consideration clearly attaches to the words adjustment or agreement which has been entered into'." On the other hand, in Baidyanath Dutta v. Mrityunjoy Mukherjee, (supra) one of the decisions relied on by the learned referring judges, it is pointed out that: " If a proceeding in execution of a decree is pending on or after the first day of January, 1939, the suit in which the decree was passed would be a suit to which the Act applies in accordance with section 2, clause (22) of the Act, but the execution proceed ing itself could not be regarded as a suit, for, in that case, the Court would have to re‑open a decree that is made in such execution proceeding which is absurd." In that case a mortgage bond of 1925 was sought to be re‑opened in execution proceedings started in 1939. As pointed out in the order of reference, 5th December, 1938, in the report of Baidyanath Dutta v. Mrilyunjoy Mukherjee (sufira.) is obviously a misprint for the 5th December, 1939. The Sub ordinate judge took the date of the execution petition to be "the date of the suit" referred to in the first proviso, and as the mortgage bond was beyond 12 years from that date, he declined to re‑open that transaction. The High Court held that the view taken by the Subordinate Judge was not correct. The learned judges, after making the above observation, observed that, as the mortgage bond of 1925 was within 12 years from the date of the mortgage suit, the decree made in the mortgage suit might be re‑opened. In Baroda Prosad Sukul v. Durga Prosad Roy (supra) the case of Jagabandhu De v. Akhoy Kumar Sil (supra.) was fol lowed without any discussion and the decision in Baidyanath Dutta v. Mrityunjoy Mukherjee (supra.) was distinguished in the following words: "As to re‑opening the mortgage bond of 1925, their Lordships observed this is a matter, however, which has to be considered by Court in taking account between the parties and making a new decree'. There was' no specific direction for re‑opening the transaction of 1925." But, as pointed out in the order of reference, the above observation quoted from the judgment in Baidyanath Dutta's case was made not with reference to the bond of 1925 but in respect of the question whether the money actually advanced by way of loan on 1925 mortgage was Rs. 11,800 or something more. In Mrityunjoy Mitra v. Satish Chandra Banerjee 48 C. W. N. 361, it was observed by a full Bench of the Calcutta High Court that taking the words of the definition of a suit to which the Act applies, it was clear that it meant that: "(a) a suit would be a suit to which the Act would apply if it was instituted after the 1st January, 1939, or pending no that date: (b) although a suit for recovery of a loan had terminated before that date by the decree being passed, it would still be a suit to which the Act would apply if a proceeding in connection with that suit had been instituted after that date or was pending on that date if the scope of that proceeding was recovery of the loan. In the Bank of Commerce, Ltd., Khulna v. Amulya Krishna Basu Roy Chowdhury 48 C. W. N. 36 F. R., Spens C. J. con sidered the provisions of the Act and observed that by the definition the expression 'suit to which this Act applies' includes not only suits instituted after the first day of January, 1939, and suits pending on that date, but even suits already disposed of, unless proceedings in execution of decrees passed therein had also been completed by that date. In Nripendra Kumar Roy Chowdhury v. Santosh Kumar Das 50 C. W. N. 720 P. 725, the argument that the date of the suit in proviso 1 refers to an application when it is made in course of execution proceedings was rejected as unsound, and it was observed that the word "suit" in that proviso means a suit to which the Act applies and n connection with which relief is claimed by the borrower under section 36 (6) of the Bengal Money Lenders Act or a suit brought by the borrower as contemplated by section 36 (1) itself. Lastly, the same view was taken by the Supreme Court of India in Rai Ram Taran Banerjee Bahadur v. Mrs. D. J. Hill Supreme Court Reporter (1950) C. W. N. Supplement P. 74‑

79. I agree with the abovementioned decisions except Jagabandhu De v. Akhoy Kumar Sil (supra) and Baroda Prosad Sukul v. Durga Prosad Roy (supra). I would, therefore, answer the questions referred to the Full Bench as follows: (1) Where the borrower has not filed a suit under section 36 (1) of the Bengal Money Lenders Act, the phrase "date of the suit" in proviso 1 to that section is to be taken to refer to the date of the suit instituted by the lender, and not to the date of the application, for execution of the decree, passed in that suit, in which the debtor applies for relief under section 36, sub section 6, clause (a) (i). (2) The decisions in Jagabandhu De v. Akhoy Kumar Sil (supra) and Baroda Prasad Sukul v. Durga Prosad Roy (supra) are not correct. In the result, I would set aside the order of the Subordinate Judge and remand the case for disposal according to law after re‑opening the bond of 1924. The Rule will be made absolute with costs. ELLIS J.‑I agree with my Lord the Chief Justice. AHMAD J.‑I agree with my Lord the Chief Justice. K. M. A. Rule made absolute.