1. The appellants are the plaintiffs, judgment-debtors, and the facts are not disputed. On 12-4-1930 the plaintiffs executed a mortgage bond for Rs. 600 in favour of the respondent, interest being at 20 per cent, per annum. The mortgagee sued on the bond and obtained a preliminary decree for Rs. 1200 on 17-11-1936. The decree was made final on 21-12-1936. The mortgaged property which comprised the land of seven schedules was put up to sale and purchased by the decree, holder for Rs. 800. The sale was confirmed on 16-9-1937 and delivery of possession was taken through Court on 30-9-1937. The decree-holder did not however succeed in obtaining actual possession and in 1938 he instituted Title suit No. 116A/38 for a declaration of his title and for khas possession. He obtained a decree for the entire property in the trial Court. In appeal, the suit was withdrawn in respect of the property contained in sch. 4, but the decree of the trial Court was confirmed on 15-9-1939 in respect of the remaining six schedules of property.

2. On 9-9-1940, the mortgagors applied under Section 36 of the Bengal Money-Lenders Act, for reopening of the decree in the mortgage suit. The application was allowed by the trial Court who assessed the dues recoverable under the mortgage at Rs. 1200-15-3. In view, however, of the provisions of proviso (ii) of Section 36(1) of the Bengal Money-Lenders Act, he held that he could not interfere with the decree which had been passed in Title Suit No. 116A/38, and consequently that be could not make a direction under sub-s. (c) of S. 36(2) of the Act for the restoration to the mortgagors, judgment-debtors, of the entire mortgaged property, but only in respect of Sch. 4 property which was valued at Rs. 200. He, therefore, passed a new decree for the sum of Rs. 600-15-3 (i.e Rs. 1200-15-3 less Rs. 600 realised by the sale of the remaining six schedules of property) and directed that the judgment-debtors would be allowed to pay this amount by annual instalments of Rs. 50 each.

3. The judgment-debtors appealed and there was a cross-objection by the decree-holder respondent. The appeal related to the refusal of the trial Court to order restoration of the entire mortgaged property; the cross-objection mainly to the contention that there was no justification for reopening the decree, but the grounds on which this objection was made were grounds which have not been advanced at the hearing in this Court. The cross-objection was disallowed so far as it related to the contention that the decree could not be reopened, but allowed in respect of the claim that interest should have been allowed from the date of the suit to the date of the new decree, an amount which was found to be Rs. 185-6-6. The appeal was dismissed and the decision of the trial Court upheld in regard to the refusal to order restoration of the land of the six schedules of property of which the decree-holder had obtained a decree for khas possession. The judgment-debtors have now appealed and there is again a cross-objection by the decree-holder. The point urged in the appeal is that the Courts below have erred in not ordering restoration of the entire mortgaged property and the objection of the respondent is that the Courts below were wrong in reopening the decree. It seems desirable to deal first with the cross-objection. For the appellant, it has been contended that the decree which was reopened was a decree “in a suit to which this Act applies” within the meaning of those words in Section 36(1) of the Bengal Money-Lenders Act, and the definition of “suit to which this Act applies” contained in S. 2(22) of that Act. Reliance has been placed on the decision of 49 C.W.N 6381 in which it has been held that a mortgage suit remains pending, even after the preliminary and final decrees have been passed and sale held in execution of the final decree, as long as an application for a personal decree can legally be made. In the present case, the sale in execution of the final decree was confirmed on 16-9-1937 and consequently an application for a personal decree could be made within 3 years from this date i.e up to 16-9-1940; consequently it is maintained that the mortgage suit must be deemed to have been pending on 1-1-1939.

4. Mr. Sen, for the respondent, has contended that the decision in 49 C.W.N 638 mentioned above is wrong, and that on a proper construction of the definition of “suit to which this Act applies” in S. 2(22) it cannot be said that, anything was pending on 1-1-1939. The mortgage decree, in so far as it directed the sale of the-mortgaged property, was fully satisfied by the execution sale held and confirmed on 16-9-1937, and the application under S. 36 was for reopening only of the decree in so far as it related to the direction for sale of that property. He has argued further that despite the passing of a preliminary decree under O. 34, R. 4, which contained in cl. 5 a provision for applying for a personal decree if the money realised by the sale of the mortgaged properties was not sufficient for payment in full of the amount payable to the plaintiff decree-holder, a subsequent application to the Court for realisation of the balance was essential and this, if made, would amount to a proceeding such as is contemplated by the definition of S. 2(22). Such application not having been made, there was no “proceeding” pending on 1-1-1939. The Legislature, he has contended, by using the words “suit or proceeding instituted or filed on or-after 1-1-1939 and includes a proceeding in execution” contemplated that some specific proceeding for the recovery of the loan would be pending on 1-1-1939 and could not have intended to include a decree of the nature of a preliminary personal decree which would be infructuous and inoperative unless and until some application was made to the Court for relief against the judgment-debtors personally. Although an application for a personal decree is to be made in the old suit, such application would, he maintains, constitute a new proceeding which alone is contemplated by the definition.

5. I must admit that there seems to be substance in Mr. Sen's contentions and I feel considerable doubt if the Legislature anticipated a case of the present nature or in fact intended that a suit in which a personal decree had been passed, but in which no personal decree had been applied for, would be a pending suit for the purpose of S. 36 or the definition in Section 2(22) of the Bengal Money-Lenders Act. Such a construction would not moreover be of benefit to the debtors in whose interest the Act was conceived. Such considerations will not however be important or material if in fact a mortgage suit in which a preliminary decree is passed containing a provision for applying for a personal decree continues to be pending until such application is made or the making of such application is barred by limitation.

6. It is now well-settled that the reopening of the mortgage decree involves the opening of the preliminary as well as the final decree and the mere fact that the relief sought related primarily to the setting aside of the sale of the mortgaged property is not very material. Moreover, the mere fact that no personal decree can be passed unless an application be made for that purpose will not, in my opinion, be sufficient to make the application a separate proceeding such as is contemplated in Section 2(22) of the Bengal Money. Lenders Act, nor would that fact for the present purposes remove from the category of “pending suit” a mortgage suit in which a preliminary decree has been passed with a provision for a personal decree if in fact the suit continues to be pending up to the date of the application or up to the date on which the making of such an application becomes barred by limitation. In this connexion Mr. Sen referred to 46 C.W.N 5573 for the purpose of substantiating his contention that a suit could not be considered to be pending unless there was, to use the words of that decision “something which still awaits decision and is not yet concluded.” I do not think however that this explanation will exclude a mortgage suit in the stage now under consideration from the category of a pending suit; the granting of a personal decree is not a mere automatic act; and the very fact that an application is necessary indicates that there is something which remains to be done, namely the making of an order authorizing the plaintiff to proceed with the execution of the decree against other assets of the judgment-debtor, after deciding that the plaintiff is entitled to it. In 52 Cal. 828, there are a number of observations which fully support this view. It was thus expressed by Buckland, J.,

“… a decree under R. 6 involves an adjudication upon matters which up to that point have not been determined, for it is not in every case of mortgage that the plaintiff has a right to a personal decree … Upon such farther adjudication as the case may require, a decree under R. 6 may be made.”

7. My learned brother Chakravarty, J. has given substantial and cogent reasons for holding that a mortgage suit of the present nature is a pending suit so long as an application for a personal decree is neither made nor barred and I agree respectfully with the conclusion which he has reached. The cross-objection is therefore dismissed.

8. On the merits, Mr. Das Gupta has contended that once the decree is reopened, the Court is bound to follow the mandatory provisions of cl. (c) of sub-section (2), S. 36 and order restoration of all the property acquired by the decree-holder and in his possession as a result of the execution of the reopened decree. He has maintained further that the explanation to the provisos to sub-s. (1) of S. 36 indicates that the title suit brought for declaring the plaintiff's title and obtaining khas possession should be construed or treated as an application by the decree-holder for possession of the property purchased by him, and consequently that the provisions of proviso (ii) will not debar the reopening of the decree. In answer to this argument reliance for the respondent has been placed on the decision 47 C.W.N 4644 in which it has been held that where the suit, decree, sale and delivery of possession were all completed before 1-1-1939, but after that date there was a suit by the decree-holder auction purchaser for declaration of his title to and recovery of possession of the auction purchased property on the allegation that he had been subsequently dispossessed, such a suit is not a “suit to which this Act applies” under S. 36 and an application under S. 36 cannot be entertained on foot thereof. The facts of that case were not precisely similar to those of the present, and in it the contention was that S. 36 was in the circumstances of that case applicable to a suit for declaration of title and recovery of possession by reason of the provisions of Sub-s. (4) of S. 36. The principle of that decision is however applicable and I fail to see how by any stretch of imagination a title suit with a prayer for recovery of possession can be held to be covered by the words “an application for the possession of property purchased by him (decree-holder) in execution of the decree.” So far as the judgment debtors are concerned, the delivery of possession through Court on 16-9-1937 was actual possession and there was in fact no application undisposed of for possession of the property purchased by him in execution of the decree. The fact that their subsequent conduct forced the decree-holder to bring a title suit cannot in my opinion convert such a suit into such an application. It is true that the provisions of cl. (c) of sub-s. (2) of S. 86 are mandatory but the provisions of proviso (ii) to Sub-s. (1) of that section are equally mandatory and where there is a conflict between the two provisions the only course appears to be to give effect to so much as will best secure the objects of the section, i.e to reopen the decree and give relief to the debtor so far as the circumstances of the case will permit. In any event, the property of the six schedules is now in possession of the decree-holder not in consequence of the reopened decree but by reason of the decree in the title suit, and so the order made by the lower Courts appears to me to be correct and there has been in fact no real failure to comply with the mandatory provisions of cl. (c) of sub-s. (2) of S. 36. This appeal is therefore dismissed, but I make no order as to costs.

9. I might add that a preliminary objection was taken that as the appeal had abated in respect of one appellant, the whole appeal will abate. That contention is not, I think, correct, and at worst the appeal would abate only in regard to the share of the deceased appellant in the disputed property if it was possible to deter, mine that share. Since however the whole appeal is being dismissed it is not necessary to examine the question further.

10. Leave to appeal under cl. 15, Letters Patent asked for is granted.

N.S

11. Appeal dismissed; Leave granted.