Mitter, J.:— In January, 1926, the Defendants borrowed Rs. 3,000 from the Plaintiff. They paid Rs. 50 only in 1929. Arrears of interest were capitalized and a simple money bond was executed by the Defendants in favour of the Plaintiff for the sum of Rs. 4,300. The bond provided for interest at the rate of 15 per cent. per annum. In 1932, a suit to enforce the bond was brought. It terminated in a decree for Rs. 6,500 on the 28th April, 1933. In 1935, the decree-holder applied for execution. Many lots were attached. The property which is material for the purpose of this appeal was Lot No. 3. It represented 12 annas undivided share of the judgment-debtor in certain immovable properties. That was put up for sale. At the sale the decree-holder himself purchased it. The sale was confirmed on the 28th August, 1936, and joint possession with the judgment-debtor's co-sharers was delivered to the decree-holder purchaser on the 23rd February, 1937. Thereafter the decree-holder purchaser continued to be in joint possession with the co-sharers of the judgment-debtors for some time. In 1938, the decree-holder purchaser instituted a suit for partition. A preliminary decree was passed on the 20th July, 1939, in that partition suit. Thereafter, on the 22nd June, 1940, the decree-holder started execution for the balance of the decree. This execution brought the suit on the simple money bond within the Bengal Money-Lenders Act. On the 6th February, 1941, the judgment-debtors made an application under sec. 36 of the said Act for relief. While this application was pending the final decree in the partition suit was made on the 31st March, 1941. The decree-holder purchaser got a separate allotment for the undivided 12 annas share which he had purchased at the Court sale. The learned Subordinate Judge has given relief to the judgment-debtors. He re-opened the decree, passed a new decree for Rs. 6,631-12-0 and made the decretal amount payable in 20 equal yearly instalments. He has directed the restoration to the judgment-debtors of the separate allotment which has been given to the decree-holder auction-purchaser in the partition suit. He made a consequential order, namely, that in default of payment of anyone of the instalments the said property was to be restored to the decree-holder auction-purchaser and in that event the price given by the decree-holder auction-purchaser at the Court sale was to be set off against the new decree. The decree-holder has preferred this appeal.

2. Five points have been urged in support of the appeal: (1) That in view of the partition decree no restoration of possession to the judgment-debtors can be ordered: (2) that in any event the order for restoration should have been for the 12 annas undivided share which was sold at the Court sale in execution of the decree passed on the simple money bond; (3) that if it be held that the judgment-debtors were entitled to restoration of possession of the separate allotment made in favour of the decree-holder purchaser in the partition suit the costs incurred by the latter in conducting the partition suit ought to have been added to the new decree; (4) that in any event the Court below ought to have added to the decretal amount the landlord's fees which the decree-holder auction-purchaser had to pay to the landlord in accordance with the provisions of sec. 26E of the Bengal Tenancy Act which was in force at the time of his purchase, as also the costs of execution and the amount of rent that he had paid to the landlord after his purchase and (5) that in any event the number of instalments is too large.

3. The first two points raise questions of first impression. We will deal with those points together. An analysis of the relevant provisions of sec. 36 of the Bengal Money-Lenders Act so far as they are relevant to the appeal before us establishes the following propositions: (a) that where the Court has reason to believe that the exercise of one or more of the powers enumerated in the different clauses of that section will give relief to the borrower the Court is bound to exercise all or any of those powers as may be appropriate to the case; (b) that if the Court has come to the conclusion that the borrower is entitled to relief, the Court must re-open the decree and pass a new decree in accordance with the Act giving instalments; (c) that if in execution of the re-opened decree any property of the judgment-debtor had been sold, the Court shall order restoration to the judgment-debtor of that property in the possession of the decree-holder if it had been acquired by the decree-holder in consequence of the execution of the re-opened decree; (d) that if the property had been purchased in execution of the re-opened decree by a bond fide purchaser other than the decree-holder or if purchased by the decree holder and thereafter sold by him to a bond fide purchaser, restoration of possession is not to be made to the judgment-debtor on the old decree being re-opened; and (e) that where property is restored to the judgment-debtor the decree-holder could again be put into possession if there is a failure on the part of the judgment-debtor in the payment of instalments provided for in the new decree. In Jadu Nath Roy v. Kshitish Chandra Acharji Choudhury . 49 C.W.N 30 1944., the provisions of sec. 36 (2) were considered in some detail. Two propositions material to the appeal before us were laid down in that case. The first proposition is that the title obtained by the decree-holder purchaser at the sale in execution of the re-opened decree remains till the new decree is satisfied by the payment of the instalments directed therein. It is only after the payment of all the instalments provided for in the new decree that the sale in his favour would stand cancelled. The second proposition is that where the judgment-debtor gets restoration of possession by virtue of the provisions of sec. 36 (2)(c), he does not acquire title till all the instalments provided for in the new decree are paid. He gets back only possession and has, while the instalment decree is still in force, a right in re aliena, namely, the right to remain in possession and to appropriate the profits of the property restored to him, the object of the Legislature being to give him the means of satisfying the instalments provided for in the new decree. In considering the first two points raised before us the points that we have noticed above are, in our judgment, material. There is another provision in sec. 36 of the Act which is also material, that is proviso (2) to sub-sec. (I) of that section. That proviso prevents the Court from affecting a decree “other than a decree in a suit to which the Act applies.” As the decree in the suit for partition is a decree in a suit to which the Bengal Money-Lenders Act does not apply, that decree cannot be touched. That is quite clear. Whether the decree in the partition suit would be binding on the judgment-debtor if he pays all the instalments under the new decree on the ground that the said final decree was passed at the instance of the decree-holder auction-purchaser after the judgment-debtor had made his application under sec. 36 of the Bengal Money-Lenders Act is a question on which we express no opinion as that question is not relevant at the present stage. We would assume that that decree is sacrosanct and cannot be touched in these proceedings under sec. 36 of the Bengal Money-Lenders Act. Furthermore, as the co-sharers of the judgment-debtors are not parties to the present proceedings under sec. 36 and cannot be dragged into these proceedings, restoration of possession of 12 annas undivided share of the judgment-debtors which was sold at the Court sale in execution of the decree on the simple money bond cannot be ordered after the decree in the partition suit. The question, therefore, is whether restoration of possession of the separate allotment made to the decree-holder by reason of the final decree in the partition suit can be made or not.

4. Cl. (c) of sub-sec. (2) of sec. 36 casts upon the Court the duty-—the language is imperative-— of restoring to the judgment-debtor his property which had been acquired by the decree-holder in consequence of the execution of the re-opened decree. That sub-section is, however, materially qualified by the provisions of cl. (b) of that sub-section. The separate allotments given to the decree-holder auction-purchaser resulted thus, namely:—(1) the acquisition by the decree-holder of the 12 annas undivided share of the judgment-debtors at the sale in execution of the re-opened decree and (2) on the basis of the title thus acquired by him at the Court sale the decree-holder acquired the separate allotment in the partition suit. The language used in cl. (c) “(…. in consequence of the execution of the re-opened decree ….)” would be wide enough to cover the case. The acquisition at the Court sale of the undivided 12 annas share was the immediate cause of the acquisition of the separate allotment in the partition suit. Prima facie, therefore, the judgment-debtors would be entitled to get restoration of possession of that separate allotment, unless their right to get restoration has been taken away by cl. (b) of sub-sec. (2) of that section.

5. We have already pointed out that if the decree-holder purchases the judgment-debtor's property in execution of the re-opened decree and thereafter conveys the property to a bona fide purchaser for value, there cannot be any restoration of possession to the judgment-debtor of that property when the decree is re-opened under the Money-Lenders Act and a new decree is passed. That is the effect of cl. (b). It would not make any difference whether that bond fide purchaser for value gave cash money as consideration for his purchase or a bond or another property of his in exchange. We may, therefore, take it that if the decree-holder auction-purchaser makes an exchange of the property of the judgment-debtor that he had purchased in execution of the re-opened decree with a stranger there would be no restoration of possession of that property to the judgment-debtor on the decree being re-opened. That case would be covered, as we have already stated, by cl. (b) of sub-sec. (2) of sec. 36. The question, therefore, is whether partition can be regarded as exchange. That leads us, to consider the true effect of a partition either by decree or by deed. The point has been considered in a number of cases. In Gyannessa v. Mobarakannessa . I.L.R 25 Cal. 210 1897., the question was whether a partition which was to be effected in terms of a solenamah required a registered document. It was contended that partition is in substance an exchange and therefore it could not be effected except by a registered instrument. In support of the contention that a partition was in substance an exchange reliance was placed on the decision of In re: Frith and Osborne3. The contention was, however, overruled, the learned Judges observing that “in deciding a question such as that which was raised before then the intricacies of the law of England relating to real property ought to be avoided.”

6. They held that partition was not in substance an exchange of the undivided share of a co-sharer over the whole common property in exchange of the 16 annas share in a definite portion thereof, namely, the portion that is allotted to him at the partition. This decision was approved in a later decision of this Court in the case of Satya Kumar Banerji v. Satya Kripal Banerji . 10 C.L.J 503 1909.. In our judgment, the true character of a partition is as follows: that it converts joint enjoyment into enjoyment in severalty. In the case of Indoji Jithaji v. Kothapalli Rama Charlu . 54 I.C 146 1919., a Division Bench of the Madras High Court observed thus:

“A partition is a division or an agreement among co-owners to make a division of their property in severalty. It effects a change in the mode of enjoyment of the property, but it is not an act of conveying property from one living person to another.”

7. In the case of Atrabannessa Bibi v. Safatullah, Mia . I.L.R 43 Cal. 504 1915., a question was raised as to whether a benamdar could institute a suit for partition. In the state of the law then understood Mr. Justice Mookerjee and Mr. Justice Newbould held that a benamdar could institute a suit for movables but he could not institute a suit for possession of immovable property. This pro-position is no longer good law, for later on the Judicial Committee of the Privy Council in the case of Gur Narayan v. Sheolal Singh . L.R 46 I.A 1 have held otherwise. But in the course of that judgment, the learned Judges considered the nature of partition. They observed thus:

“The object of a suit for partition is to alter the form of enjoyment of joint property by the co-owners; or, as has sometimes been said, partition signifies the surrender of a portion of a joint right in exchange for a similar right from the co-sharer. Partition is thus the division made between several persons of joint lands which belong to them as co-proprietors, so that each becomes the sole owner of the part which is allotted to him; the essence of partition is that the property is transformed into estates in severalty and one of such estates is assigned to each of the former occupants for his sole use as his sole property”.

8. Although partition thus resembles an exchange, it is not an exchange. There is no conveyance but only transformation of the property. The estate in common is transformed, that is, it takes only another form, namely, two or more estates to be possessed and enjoyed in severalty. By the partition a co-sharer gets a separate allotment by virtue of his antecedent title as co-sharer. There is thus no acquisition of property in another independent right. It is not a conveyance—it is not an exchange—and the separate allotment is not obtained by another independent title. Cl. (b) of sec. 36 (2) would not be attracted, nor would the proposition formulated by a Division Bench of this Court in Kamalakshya Choudhury v. Joy Chand Lal Babu . 48 C.W.N 105 1943. apply. We cannot, therefore, agree with the implication that may follow from the observations of Mr. Justice Sen in the case of Naresh Chandra Gupta v. Lal Mahmud Bhuiya . 46 C.W.N 457 at 461 1942.. Mr. Justice Sen based his decision on two grounds. One was that as the final decree could not be re-opened after the mortgage sale as that decree was satisfied by the mortgage sale before the 1st January, 1939, the preliminary decree could not be re-opened also. The other ground was that the partition decree being not a decree, passed in a suit to which the Bengal Money-Lenders Act applies could not be touched.

“It was therefore a decree which was protected, the Court is prohibited from doing anything which affects such a decree in the exercise of its powers under the Act.”

9. There was no question in that case of restoration of possession to the mortgagor. At least that does not appear from the report. The observation that the partition decree could not be effected is sound. We cannot agree with the last-mentioned sentence, if it implies that inasmuch as restoration could not be made to the mortgagor in view of the partition decree the preliminary and the final mortgage decrees could not be re-opened. Mr. Justice Mukherjea, however, expressly based his judgment on the first ground only, namely, whether the final decree could be re-opened and if the final decree could not be re-opened by reason of its satisfaction before 1st January, 1939, whether the preliminary decree could be. In his judgment he says that that was the only point for consideration. The reasons on the second ground given by Mr. Justice Sen, therefore, is in effect a judgment of a single Judge and if the meaning of Mr. Justice Sen in that passage be that which the learned Advocate for the Appellant imputes to it we are not bound by those observations.

10. There is another aspect of the matter. In the case of Jadu Nath v. Kshitish Chandra, it was pointed out that the Legislature had a definite object in view in directing restoration to the judgment-debtor on the re-opening of the decree, where the property of a judgment-debtor had been purchased by the decree-holder himself-in execution of the re-opened decree and was with him at the time when the application for relief was filed. It was to enable the judgment-debtor to pay the instalments provided for in the new decree. If the contention of the Appellant be accepted, it would in this case defeat the object of the Legislature. Here the re-opened decree was in contravention of the provisions of the Bengal Money-Lenders Act, because it had awarded interest to the lender at a date which is in excess of that provided for in the Act. Under cl. (c) of sub-sec. (I) of sec. 36 the Court was bound to release the borrower of all liability in excess of the limits specified in cls. (I) and (2) of sec. 30. That could be done only by the re-opening of the decree [Renula v. Rai Manmatha Nath Bose . 49 C.W.N 491 1945. as decided by the Judicial Committee of the Privy Council— not reported yet] and by passing a new decree giving instalments. That has been done by the learned Subordinate Judge in this case and that portion of his judgment and decree has not been challenged before us nor could it be challenged before us now after that decision of the Judicial Committee. Therefore the new decree for instalments stands. It would be unreasonable to keep back the property from the judgment-debtor and thereby to deprive him of the means to pay the instalments, though the property transformed in another shape is still with the decree-holder purchaser. That is an additional reason why we would hold that the judgment-debtor should get restoration of the separate allotment given to the decree-holder at the partition suit, which is in essence only a transformation of the judgment-debtor's property as it was at the time of the sale at which the decree-holder purchased in execution of the re-opened decree. We accordingly maintain that part of the judgment of the learned Subordinate Judge by which restoration of possession has been ordered to the judgment-debtors.

11. The third point put forward by Dr. Sen Gupta raises also an important question, namely, whether the costs of the partition should be added to the new decree. It could be disposed of in a technical way, for in the Court below the decree-holder made no such claim and led no evidence to show what his costs were but we prefer to base our judgment on the merits, specially as the matter has been argued from the general point of view.

12. Dr. Sen Gupta, appearing for the decree-holder Appellant, places the matter in the following way: He says that suppose bare land of the judgment-debtor had been purchased by the decree-holder himself in execution of the reopened decree and that after his purchase and before any application for relief by the judgment-debtor he had raised costly buildings or had made at great expense improvements on the lands. On general principles, he says, the judgment-debtor ought to pay the costs of the building or the cost of the improvement, if he is to have restoration. To the proposition so broadly stated there would be in our judgment three answers: first, the question of assessing the compensation and adding that to the new decree would be premature at the time of making the order for restoration for in the end it may be that the judgment-debtor may fail to pay the instalments provided for in the new decree. In that event the decree-holder would get back the property, the land with improvement. He would get back the property by virtue of the provision of sec. 36 (2)(e) on the basis of the title that he acquired at the Court sale in execution of the re-opened decree. The second answer is that in view of the principle laid down by Sir Lancelot Sanderson in the case of Narayan Das Khettry v. Jatindra Nath Roy Choudhury . L.R 54 I.A 218, the decree-holder may have only the right of removal of the buildings or of taking away the improvements that he had effected in the event of his sale falling through by the judgment-debtor paying all the instalments of the new decree. Our third answer is that if the decree-holder's right be not the right of removal but the right to get compensation for the building or the improvement, that question cannot be adjudicated in these proceedings under sec. 36 of the Bengal Money-Lenders Act and the amount assessed j and added to the new decree for in that case it may amount to a denial of relief to the borrower in some, if not in many cases. We hold that for the purposes of sec. 36 all that the Court can add to the new decree are those amounts provided for in sec. 36 (2) of the Act, namely, the costs in respect of the re-opened decree, and even that is left to the discretion of the Court. If the decree-holder auction-purchaser has the right to get compensation for the building or the improvements, he would be left to recover his dues in other proceedings but not in the proceedings for relief by the debtor under sec. 36 of the Act. For these reasons we overrule this point.

13. In view of what we have last said the claim for the costs of execution must also fall through.

14. The last question is the question of instalments. It would be difficult for us to say on the evidence that was before the Subordinate Judge that the latter was not right in giving as many as 20 instalments, but before us the decree-holder has filed an affidavit annexing a conveyance executed by the judgment-debtors and their co-sharers in December, 1944. ‘ Sufficient notice of this affidavit was given to the Respondents. The facts stated in that affidavit have not been controverted by them. The annexure, namely, the kabala, shows that for a consideration of Rs. 23,000 the judgment-debtors along with their co-sharers have sold to a solvent party 11 items of property which had been purchased by the decree-holder himself in the other suit in respect of which Appeal No. 83 was filed. The conveyance shows that a sum of about Rs. 13,000 was retained by the purchasers for the purpose of paying the other creditors of the vendors as also the instalments for the new decree passed in the other suit, being the subject-matter of Appeal No. 83 and that about Rs. 10,000 was given to the judgment-debtors and their co-sharers in cash. It is admitted by the judgment-debtor's Advocate that the judgment-debtors would be entitled to about Rs. 7,000 out of the said Rs. 10,000. That conveyance was executed as late as December, 1944. The judgment-debtors have, therefore, cash money in their hands. That conveyance also shows that there is a decree against the judgment-debtors for which they have to pay annual instalments of Rs. 1,750. All these facts must be taken into consideration. The other fact that must also be taken into consideration is this: that as a result of a robbery the judgment-debtors lost a large amount of money and they were reduced to straitened circumstances. Their cloth business is gone and the money-lending business which they had before the decree cannot be in a flourishing state. They have 78 members of their family to maintain. Some of the descendants of the judgment-debtors, their sons and nephews, are salaried men but their monthly salary is very small. We are told that two instalments according to the new decree have already been paid. Taking all these facts into consideration we think that the balance of the new decree ought to be paid in ten equal annual instalments and we direct accordingly. The first of such instalments is to be paid within the month of Chaitra 1352 B.S and the succeeding instalments within the month of Chaitra of the succeeding years. If there is default in the payment of any one of these instalments, the decree-holder would be entitled to get back possession of the property and in that event the amount at which he had purchased at the Court sale is to be set off against the balance of the new decree.

15. The Respondents would be entitled to realise, two-thirds of the costs of this Court from the Appellant.

16. The hearing-fee is assessed at three gold mohurs.

Waight, J.:— I agree.

C.C