Mitter, J.:— On the 18th July, 1925, the Respondents borrowed Rs. 5,000 from the Appellant. The loan was secured by a mortgage of immovable properties. It carried simple interest at the rate of twelve per cent, per annum. Thereafter the borrowers paid Rs. 1,575 in payment of interest on diverse dates before the year 1936. In that year the lender filed the suit for recovery of the loan. As the Assam MoneyLenders Act (IV of 1934) was then in force the claim was laid at Rs. 5,000 for the principal and Rs. 5,000 for interest — total Rs. 10,000, for sec. 9 of that Act prevented the Court from passing a decree for arrears of interest for a sum greater than the principal of the loan. A preliminary decree for sale for the said amount and for Rs. 577-8 for costs — total Rs. 10,577-8, was passed on the 21st May, 1937. The decretal amount carried interest at the rate of six per cent, per annum. On January 9th, 1939, a sum of Rs. 1,000 was paid towards the decree. Thereafter on the 27th January, 1939, a final decree for the balance was passed. Between the 30th January, 1941 and the 19th May, 1942, a further sum of Rs. 3,150 was paid leaving a balance of Rs. 5,725 plus interest outstanding on the decree. On the 22nd January, 1943, a sum of Rs. 10,035-11-6 was due in terms of the decree. On the next day execution was started for recovering the said amount. While the said execution was pending the Assam Money-Lenders Act was amended by Act VI of 1943. The amendments came into operation on the 14th July, 1943. By the amendment sec. 9 of the Parent Act was radically changed. The relevant portion of the section as amended is as follows:—
“No money-lender shall in respect of any loan made before or after the commencement of this Act, recover, on account of interest and principal, whether through Court or otherwise …. a sum greater in aggregate than double the principal of the loan.
Explanation. The term ‘aggregate’ means and includes the amount already paid amicably or otherwise.”
2. The judgment-debtors filed on the 4th August, 1943, an objection under sec. 47 of the Code of Civil Procedure invoking the aid of the amended section. The learned Subordinate Judge gave effect to that objection and held that only a sum of Rs. 4,275 plus the cost of execution was recoverable. The decree-holder has preferred this appeal. The only point is whether sec. 9 as amended governs this case. We are of opinion that it does not, and the decree-holder is entitled to get the sum for which the application for execution had been filed plus interest in terms of the final decree, which has accrued due since then.
3. The ordinary rule is that the rights of litigants are to be governed by the law in force when the action was commenced. The corollary from this is that a change in the substantive law, as opposed to adjective law, would not affect pending actions, unless the legislature had indicated otherwise either by express enactment or by necessary implication [per Denman, C.J, in Hitchcock v. Way(1); per Sir George Jessel in In re Joseph Suche, Ltd.(2)]. The decision of the Judicial Committee in Mukherjee, Official Receiver v. Ram Ratan Kuer(3) does not militate against the rule. There the language used in sec. 26(N) of the Behar Tenancy Act, “shall be deemed to have given consent” — made that section retrospective and what was laid down was that the legislature had not made any discrimination against a purchaser who had purchased an occupancy holding before 1st January, 1923, but whose right to remain on the land was under challenge in a suit which was pending when that section, namely 26 (N), came into operation.
4. The second general rule is that “you should not give a larger retrospective power to a section, and even in an Act which is to some extent intended to be retrospective, than you can plainly see the legislature meant.” [Reid v. Reid(4), per Bowen, L.J, at 408 and 409; Munjuri Bibi v. Akkel Mohamed(5) and Jogendra Chandra Ghose v. Bhawani Charan Law(6)].
5. The Assam Money-Lenders Amendment Act (VI of 1943) must, in our judgment, be considered in the light of those rules of construction. That Act consists of five sections. Sec. 1(2) enacts that “it shall apply to pending suits and appeals” This provision was required, for otherwise the provisions of sec. 4 of the Amending Act which had replaced sec. 8 of the parent Act, would not have applied to suits already filed and pending either in its original or appellate stage when the amending Act came into force. In our judgment the legislature, however, did not intend to make sec. 5 of the Amending Act applicable to pending execution proceedings.
6. In the first place the language of sec. 1(2) falls short, and in second place no provision is made in the Amending Act akin to that occurring in the Bengal Money-Lenders Act of 1940 empowering the Court to re-open decrees. We cannot, specially for the second reason, give effect to the Respondent's contention that the word “suit” used in sec. 1(2) must be taken to include a proceeding in execution on the ground that proceedings in execution are to be regarded as continuation of the suit. In matters of procedure proceedings in execution have no doubt been sometimes regarded as continuation of the suit, but for that reason only the word “suit” as used-in sec. 1(2) of the Amending Act should not be taken to include a proceeding in execution, for vested rights, rights created by decrees of Court, are involved. Moreover, the legislature by using the words “and appeals” in that section have given the indication that the word “suit” used in that section is not to have a wider meaning than what it strictly has.
7. The result is that this appeal is allowed and the case remanded to the lower Court with a direction to proceed with the execution in the light of the observations we have made. The parties to bear their respective costs of the appeal.
Clough, J.:— I agree.