Manabodh Panda and Another vs Sm. Rajkumari Misrani

Das, J.—These two appeals arise out of an execution matter, and have been heard together. Miscellaneous Appeal No. 13 of 1944 is an appeal by the judgment-debtor from an order of the learned Subordinate Judge of Sambalpur dated 24-1-1944 by which the learned Subordinate Judge has refused an application of the judgment-debtor, filed for certain reliefs under the Orissa Money-lenders Act, to set aside in effect a sale held on 15-8-1939. The other appeal, namely, Miscellaneous Appeal No. 30 of 1944 is an appeal by the decree-holder against the said order of the learned Subordinate Judge granting certain other reliefs to the judgment-debtor. As the two appeals have been heard together, this judgment will govern both of them.

The facts out of which these two appeals have arisen are shortly stated below. The judgment-debtor Manabodh Panda had executed a mortgage in respect of certain properties in favour of the decree-holder, Srimati Rajkumari Misrani, on 24-3-1927. Rajkumari Misrani brought a suit on the foot of the mortgage in 1935 and obtained a preliminary decree on 30-4-1937. This decree was made final on 4-11-1938. The final decree was for a sum of Rs. 18,000 odd, out of which a sum of Rs. 7,000 represented the principal amount of the mortgage bond, and Rs. 11,000 odd represented interest. The final decree was put in execution, and on 7-8-1939, the judgment-debtor applied for certain reliefs under the Orissa Money-lenders Act (Act 3 [III] of 1939). This Act, so far as the relevant sections are concerned, came into force on 1-7-1989 throughout the province of Orissa; it could not, however, come into force in Sambalpur, which was a partially excluded area, in the absence of a notification u/s 92, Government of India Act, 1935. Such a notification was issued on 12-4-1940 by which the relevant sections of the Orissa Money-lenders Act, 1939, came into force in Sambalpur with effect from 15-4-1940 subject to certain modifications. Therefore, the date on which the judgment-debtor filed his application for relief under the Orissa Money-lenders Act was a date on which the Orissa Money-lenders Act, 1939, had not come into force in Sambalpur. On 15-8-1939 the learned Subordinate Judge dismissed the application, on the short ground that the Orissa Money-lenders Act, 1939, had not been extended to Sambalpur. A sale was held on that date and the mortgage properties (some 800 acres of land) were sold for a sum of Rs. 10,000. The sale did not fully satisfy the decree and on 4-7-1942, a personal decree under Order 34, Rule 6 was obtained for a sum of Rs. 10,000 odd, In the meantime, the judgment-debtor had appealed against the order of the learned Subordinate Judge rejecting his application for relief under the Orissa Money-lenders Act, 1939, on 15-8-1939. This appeal was Miscellaneous Appeal No. 36 of 1939 of this Court and was disposed of on 18-9-1942. It was pointed out by this Court that the order of the learned Subordinate Judge dated 15-8-1939, was correct inasmuch as the Orissa Money-lenders Act, 1939, did not apply in Sambalpur till after the notification u/s 92, Government of India Act, 1935. Dealing with the question whether in view of the personal decree passed in 1942 the judgment-debtor was entitled to reliefs under the Orissa Money-lenders Act, 1939, this Court observed as follows in Miscellaneous Appeal No. 36 of 1939:

It may be that the appellant can make out a case for relief u/s 11, Sub-section (2), Money-lenders Act, since that decree (the personal decree for Rs. 10,886) has not yet been executed and the Money-lenders Act now extends to Sambalpur. But, if so, the proper place for that prayer to be made is not here, but before the Court of first instance which can, if necessary, take evidence and enter into the merits. It appears to be open to the appellant to make an application now before the learned Subordinate Judge and I have no doubt that any such application, if made, will receive full consideration both from the legal point of view and upon the merits from the learned Subordinate Judge.

With these observations the appeal No. 36 of 1939 was dismissed by this Court. On 3-5-1943 the judgment-debtor filed his present petition for certain reliefs under the Orissa Money-lenders Act, 1939. This petition has been dealt with by the learned Subordinate Judge as per his order dated 24-1-1944, the order in question in the two appeals before us. The learned Subordinate Judge has held that under the provisions of the Orissa Money-lenders Act, 1939, it was not open to him to interfere with or set aside the sale held on 15-8-1939, inasmuch as the sale had been validly held before the Orissa Money-lenders Act came into force in Sambalpur. The learned Subordinate Judge has further pointed out that the decree-holder had taken delivery of possession through Court in February 1940, which was also before the Orissa Money-lenders Act, 1939, came into force in Sambalpur. The learned Subordinate Judge has expressed the view that title validly acquired by a sale held before the coming into force of the Orissa Money-lenders Act, 1939, could not be disturbed, because none of the provisions of the Orissa Money-lenders Act warranted such disturbance. In that view of the matter, he refused to set aside the sale but granted certain reliefs to the judgment-debtor in respect of the unsatisfied personal decree passed on 4-7-1942. The reliefs which the learned Sub. ordinate Judge has given to the judgment-debtor may be expressed in his own words:

Interest was allowed at 12 per cent, per annum and it has to be reduced to 9 per cent. per annum and that the interest must not exceed the principal. The learned pleader of the applicants admitted that the interest now would be more than Rs. 7000 which was the principal. The opposite party is therefore entitled to recover Rs. 14,000 as principal and interest with costs of the original suit and of final decree and personal decree with future interest at 5 per cent, per annum as directed in the preliminary decree, on the costs, less the amount of Rs. 10,000 realised by the sale of the property.

The learned Subordinate Judge has also allowed the judgment-debtor to pay the balance due in four equal six monthly instalments. The main grievance of the judgment-debtor is that the learned Subordinate Judge has not set aside the sale and prepared a new decree for the realisation of the dues under the mortgage bond of 1927 in accordance with the provisions of the Orissa Money-lenders Act, 1939. The decree-holder''s grievance against the order of the learned Subordinate Judge, as stated in the memorandum of appeal, is that the learned Subordinate Judge has wrongly held that the decree-holder was a money-lender within the meaning of the Orissa Money-lenders Act, 1939, and further that the learned Subordinate Judge should not have refused interest pendente lite. Out of these two points mentioned in the memorandum of appeal presented by the decree-holder, only the latter point regarding pendente lite interest has been pressed before us.

It would appear from what I have stated above that the main point for decision in connection with the appeal of the judgment-debtor is if the learned Subordinate Judge should have reopened the transaction between the parties, under the Orissa Money-lenders Act, 1939, in such a way as to set aside the sale held on 15-8-1939 and make a new decree for the parties, and a fresh valuation of the properties to be sold for the dues under the new decree. The learned Advocate-General, appearing for the judgment-debtor appellant, has placed several sections of the Money-lenders Act before us. He has drawn our attention to certain amendments made in the Orissa Money-lenders Act by Act 18 [XVIII] of 1947, which was extended to Sambalpur by a notification on 1-8-1947. The learned Advocate-General relies mainly on Sections 10 and 11 of the Act as amended up-to-date. Sub-section (2) of Section 11 is in the following terms :

Where a decree passed by a Court on 1-4-1936 or thereafter, on the basis of a loan, remains unsatisfied in whole or in part on the date on which this Act comes into force, the Court which passed the decree, or the Court or other authority to which the decree is sent for execution shall, on the application of the judgment-debtor, exercise all or any of the powers specified in Sub-section (1).

Sub-section (1) of Section 11 as amended up-to-date says that in, any suit whether brought by a money lender or by any other person in respect of a loan advanced before the commencement of this Act, the Court shall exercise all or any of the following powers as may be applicable to it: then the powers are mentioned of which Clauses (i) and (iv) are relevant for our purpose. Clause (i) is as follows:

Re-open the transaction, take an account between the parties, and relieve the debtor of all liability in respect of any interest, in excess of nine per centum simple per annum in the case of a secured loan and twelve per centum simple per annum in the case of an unsecured loan;

Clause (iv) is in the following terms:

Set aside either wholly or in part or revise or alter any security given or agreement made in respect of any loan, and if the money-lender has parted with the security, order him to indemnify the debtor in such manner and to such extent as it may deem just.

By the Amending Act of 1947 a new Sub-section, namely, Sub-section (3) has been added to Section 10. This new Sub-section is in the following terms:

Where a decree passed by a Court on 1st April 1936, or thereafter on the basis of a loan remains unsatisfied in whole or in part on the date on which the Orissa Moneylenders (Amendment) Act, 1947, comes into force, the Court which passed the, decree or the Court or other authority to which the decree is sent for execution shall, on the application the judgment-debtor, exercise the powers specified in Sub-section (2) and the decree shall be modified accordingly.

Sub-section (2) of Section 10 says that in such suit, as is referred to in Sub-section (1), the Court shall appropriate towards the satisfaction of the loan any sum realised as interest through Court or otherwise, for the period preceding the institution of the suit, which is greater than the amount of the loan originally advanced. I may also refer here to Sub-section (1) of Section 10, which has been amended by Act 18 [XVIII] of 1947. That Sub-section in effect says that no Court shall in respect of a loan advanced before or after the commencement of this Act pass a decree for an amount of interest for the period preceding the institution of the suit which, together with any amount already realised as interest through Court or otherwise, is greater than the amount of the loan originally advanced. Both Sections 10 and 11 as they originally stood referred to a suit brought by a money-lender. By the amendment made in 1947 they now apply to a suit whether brought by a moneylender or by any other person in respect of a loan. The learned Advocate-General has contended before us that by virtue of the provisions of Section 16 amended Sections 10 and 11 will now apply, so far as may be, to appeals and proceedings in execution arising in respect of decrees passed on 1st April 1936 or thereafter on the basis of loans, whether such appeals or proceedings were pending on or instituted after the date on which the said sections came into force. The main contention of the learned Advocate-General is that the personal decree passed in July 1942 still remains unsatisfied. The personal decree is for the balance of the amount which the judgment-debtor was found liable to pay to the decree-holder under the preliminary decree passed on 30th April 1937 and the final decree passed on 4th November 1938. It is contended that all the decrees in this case were passed after 1st April 1936 and they still remain unsatisfied. The suit is, therefore, still pending and by virtue of the provisions of Sub-section (2) of Section 11, Sub-section (3) of Section 10 and Section 16, Orissa Money-lenders Act, the judgment-debtor is entitled to all the reliefs under the various sections of the Orissa Money-lenders Act, and if in order to give such reliefs it becomes necessary to set aside the sale held on 15th August 1939 or to disturb a title acquired by that sale, the Court is entitled to do so by virtue of the aforesaid provisions of the Orissa Money-lenders Act. This is the sum and substance of the contention, as I have understood it, of the learned Advocate-General. On behalf of the decree-holder, however, it has been contended that none of the provisions of the Orissa Money-lenders Act authorise the setting aside of a sale held before the Orissa Money-lenders Act came into force or the disturbance of a title acquired at such a sale. On behalf of the decree-holder it is contended that it may be open to the Court to apply the Orissa Money-lenders Act to the unsatisfied personal decree and give whatever relief the judgment-debtor is entitled to under the Orissa Moneylenders Act; but the Court is not entitled under the provisions of the Orissa Money-lenders Act to set aside a sale which had been validly held before the Orissa Money-lenders Act came into force or to disturb a title acquired by that sale.

Stated in the form mentioned above, the question at issue reduces itself to the simple question if any of the provisions of the Orissa Money-lenders Act, 1939, authorise the Court, either by express words or by necessary implication to set aside a sale validly held before the coming into force of the Orissa Money-lenders Act, 1939, or to disturb a title acquired at such a sale. The learned Advocate-General has not been able to show us any express words either in Section 10 or Section 11 or any other section of the Orissa Money-lenders Act, 1939, which would authorise the Court to dose. A large number of decisions of the Calcutta High Court have been placed before us on this point. I think it is unnecessary to consider all these decisions in detail, for the simple reason that the provisions of the Bengal Money-lenders Act are different from the provisions of the Orissa Money-lenders Act in this respect. I invite special attention to Section 80, Bengal Money-lenders Act, which relates to the re-opening of transactions. Sub-section (2) of that section of the Bengal Act clearly authorises the Court to restore the judgment-debtor''s property acquired by the decree-holder in consequence of the execution of the re-opened decree. If the judgment-debtor pays to the decree-holder the amount of the new decree, then possession of the property remains with the judgment-debtor; if there is default, possession of the property comes back to the decree-holder. These and similar provisions of the Bengal Act are not to be found in the Orissa Money, lenders Act. It would not, therefore, be right to adopt the reasoning of some of the Calcutta decisions, given with reference to the provisions of Section 36 of the Bengal Act, for the purpose of interpreting the provisions of the Orissa Money-lenders Act. I propose, therefore, to examine independently the provisions of the Orissa Money-lenders Act before referring to some of the Calcutta decisions.

The sections relevant for the purpose of this appeal are Section 16, 11 and 10. The material portion of Section 16 is in Clause (ii), which says that the provisions of Sections 10 to 15 shall, so far as may be, apply to appeals and proceedings in execution arising in respect of decrees passed on 1st April 1936 or thereafter on the basis of loans whether such appeals or proceedings in execution were pending on, or instituted after, the date on which the said sections come into force. It is contended before us that when Section 16 makes applicable the provisions of Sections 10 to 15, so far as may be, to pending appeals and proceedings in execution arising in respect of decrees passed on 1st April 1936, or thereafter, it means Sections 10 to 15 as amended up-to-date, that is, as they stand on the date on which they are being applied. Assuming this contention to be correct without deciding it, the section merely takes us back to Sections 10 and 11. We have, therefore, to see if there is anything in Sections 10 and 11, as amended up-to-date, which authorises the Court to set aside a sale already held or disturb a title already acquired, before the coming into force of the Oriasa Money-lenders Act, 1989, in the particular area from which this appeal comes. The learned Advocate-General has relied on Sub-section (2) of Section 11 and Sub-section (3) of Section 10. Both these Sub-sections allow the Court to grant certain reliefs in respect of a decree passed on 1st April 1936 or thereafter on the basis of a loan, when the said decree remains unsatisfied in whole or in part on the date on which the Orissa Money-lenders Act, comes into force (in the case. of Sub-section (2) of Section 11) or the date, on which the Oriasa Money-lenders (Amendment) Act, 1947, comes into force (in the case of Sub-section (3) of Section 10). The learned Advocate-General has contended before us that the personal decree of 1942 is still unsatisfied, and, therefore, the preliminary and final decrees passed in 1937 and 1938 also remain unsatisfied. He has referred us to the forms of decrees in Appendix D of schedule l, Civil P.C., particularly the forms in which decrees in a mortgage action are passed. He has referred to form No. 8, the form in which a personal decree under Order 34, Rule 6 is passed, in which there is a reference to the final decree and it is stated that the balance due after the sale under the final decree is so much. The learned Advocate-General may be right in his contention that the amount payable under the personal decree is really a part of the final decree, which adjusts the total liability of the debtor to the creditor. In this view, if the personal decree remains unsatisfied, the final decree and the preliminary decree can also be said to remain unsatisfied. Accepting, therefore, this pact of the argument of the learned Advocate-General, we have to consider whether the Court can give the kind of relief which the learned Advocate-General wants for his client in this case. Sub-section (2) of Section 11 entitles the Court to exercise all or any of the powers specified in Sub-section (1). That Sub-section has four clauses, with two of which we are concerned. These two clauses I have already quoted in exten so in an earlier part of this judgment. I can find nothing in those two clauses which would authorise the Court to set aside a sale validly held before the coming into force of the Orissa Money-lenders Act, 1939, or to disturb a title validly acquired by such a sale. There has been some argument before us if the expression "reopen the transaction" is an independent clause, and if under that clause the Court is entitled to set aside a sale which has been held before the coming into force of the Orissa Money-lenders Act, 1939. My own view is that the expression "reopen the transaction" in Clause (i) is not an independent clause. It is followed by some other words which clearly show that the reopening of the transaction is for the limited purpose of relieving the debtor of all liability in respect of any interest in execess of nine per centum simple per annum in the case of a secured loan and twelve per centum simple per annum in the case of an unsecured loan. The expressions "reopen the transaction" is followed by a comma; then there is the expression "take an account between the parties;" these two expressions merely show that the Court can do certain things in order to give a particular relief. What relief the Court can give is mentioned in the following words: "and relieve the debtor of all liability in respect of any interest," etc. It is clear to me that the reopening of the transaction which the Court can do is for the purpose of giving the particular relief which is mentioned in Clause (i). That clause does not, either by express words or necessary implication, allow the Court to set aside a sale already held before the coining into force of the Orissa Money-lenders Act or to disturb a title acquired by such a sale. If a decree passed on 1-4-1936, or thereafter on the basis of a loan remains unsatisfied, the Court can give relief to the judgment-debtor under Clause (i) of Sub-section (1) of Section 11 to the extent mentioned therein; it can reopen the transaction, take an account between the parties and relieve the debtor of all liability in respect of any interest in excess of a certain percentage.

For the purpose of calculating the present liability of the judgment-debtor, the Court can do any of the things mentioned in Clause (i). There is, however, nothing in that clause which would indicate that the Court can interfere with a sale validly held or a title validly acquired before the coming into force of the Act, The sale and the title acquired there under have taken the matter beyond the region of contract, and it is no longer a case of reopening a transaction or taking an account between the parties. The next clause is Clause (iv), which allows the Court to set aside either wholly or in part or revise or alter any security given or agreement made in respect of any loan, etc. Here, again, the security no longer exists after the mortgaged property has been sold in execution of a final decree. The security had merged into the decree, and so far as the security is concerned it has vanished by the sale of the mortgaged property. I think it will be stretching the language too far to hold that the expression "set aside either wholly or in part or revise or alter any security given" means that the Court can undo a sale which has already been held or disturb a title which has been validly acquired. There is an important proviso to Sub-section (1) of Section 11 which says that nothing contained in the Sub-section shall be deemed to require the creditor to refund any sum which has been paid to him. This proviso also restricts the scope of Sub-section (1) of Section 11, and '' indicates that the Legislature did not intend that in the process of reopening, everything which has been done before including sales held should be disturbed. Then there is another important consideration. If the intention was that sales already, held and title validly acquired there under before the coming into force of the Orissa Moneylenders Act, 1939, were to be disturbed one would expect certain provisions regarding third party purchasers, or bona fide assigns. Such provisions occur in the Bengal Act, which goes much further than the Orissa Money-lenders Act. The absence of such provisions in the Orissa Money-lenders Act, particularly in Section 11, is against the contention of the learned Advocate. General. Turning now to Section 10 of the Act, the position is the same. Sub-section (3) of Section 1o allows the Court to give such relief to the judgment-debtor as is specified in Sub-section (2). Neither Sub-section (2) nor Sub-section (3) of Section 10 say anything about setting aside a sale or disturbing a title validly acquired before the coming into force of the Act. The learned Advocate-General has laid great emphasis on the expression "and the decree shall be modified accordingly" which occurs in Sub-section (3). He says that if the decree is to be modified, it must be the preliminary and the final decrees which still remain unsatisfied; if these decrees are to be modified, then a fresh sale must be held in accordance with the modified decree. Here, again, I do not think that the words of the section justify the contention raised on behalf of the judgment-debtor appellant. The expression "the decree shall be modified accordingly" has to be read with Sub-section (2) of Section 10 and that Sub-section indicates the kind of relief which can be given. I am unable to accept the contention of the learned Advocate-General that the expression means that a sale already held should be set aside or a title validly acquired before the coming into force of the Act shall be disturbed. My conclusion, therefore, is that there is nothing in the two sections 10 and 11 which would justify the Court in setting aside a sale validly held before the coming into force of the Orissa Money-lenders Act or to disturb a title validly acquired under such a sale.

I now turn to some of the decisions which have been placed before us. The learned Advocate-General has placed great reliance on three decisions: Mritunjoy Mitra Vs. Satish Chandra Banerjee, ; AIR 1944 35 (Privy Council) and Mritunjoy Roy and Another Vs. Netai Chand Dutt and Others, The first decision is a Full Bench decision in which the principal question for consideration was formulated as follows:

Where in a suit for the recovery of money lent upon a mortgage, the final decree was executed by the sale of. the mortgaged property before 1-1-1939 (which was the relevant date under the Bengal Act), but a personal decree for the unrealised balance remained unsatisfied on that date, can the Court in exercise of its powers u/s 36, Bengal Money-lenders Act, reopen the preliminary decree and final decree as well as the personal decree so as to affect all three?

The answer given by the Full Bench was that each of the three decrees in the suit was a decree to which the Bengal Act applied and that none of these three decrees were fully satisfied by 1-1-1939. This decision is really a decision in favour of the learned Advocate-General so far as the first part of his contention is concerned, "namely, when a personal decree passed under Order 34 Rule 6, Civil P.C., remains unsatisfied it follows that the preliminary decree and the final decree also remain unsatisfied. I have already stated that this part of the contention of the learned Advocate-General may be accepted as correct. The Calcutta decision, however, is no authority for the second proposition of the learned Advocate-General that Sections 10 and 11, Orissa Moneylenders Act, authorise the setting aside of a sale already held before the coming into force of the Act. It is true that a sale had already been held in execution of the final decree in the Calcutta case; but I have already pointed out that Section 36, Bengal Money-lenders Act, goes much further than the corresponding provisions of the Orissa Money-lenders Act, and gives the power to restore to the judgment-debtor property which had already been purchased by the decree-holder in execution of the reopened decree. Section 36, Bengal Act, also contains provisions for the protection of third party purchasers and boria fide assigns for value. There are no corresponding provisions in the Orissa Money-lenders Act, and the case before us must be decided on the terms of the provisions of the Orissa Money-lenders Act. The facts of the Privy Council decision on which the learned Advocate-General has relied were as follows: The plaintiff cbmmenced a mortgage action claiming a decree for payment of Rs. 3,88,300 the amount then due to the mortgagees, on default of payment, sale of the mortgaged properties, and liberty to apply for the recovery of any balance after sale. The suit was contested and the parties arrived at a compromise agreement to be enforced by a decree, and on 4-7-1933, the decree was made on the basis of the compromise. One of the terms of the compromise was that defendant 1 shall execute in favour of the plaintiff a sale deed in respect of some villages which would be selected by the plaintiff. On 26-5-1934, the creditor applied for execution of the aforesaid decree. This application was resisted and before the execution proceedings had been determined, there came into force the U.P. Agriculturists Relief Act of 1934. On 23-7-1935, the debtor claimed certain reliefs under Sections 5 and 30 of the said Act. The Subordinate Judge granted those reliefs but the Chief Court at Lucknow held that the reliefs could be granted only in respect of such decrees as contained a direction for payment of money. Their Lordships did not agree with the reasoning of Chief Court. With regard to the contention that the parties should not be allowed to resile from the agreement, their Lordships observed as follows:

This consideration appears, with respect, to be more appropriate to appeal than to revision ; but as the operation of a Belief Act is one of general importance it may be as well to point out that the object of all such Acts is to give relief from agreements made by the applicants whether under the laws relating to usury or otherwise, and that it cannot in ordinary circumstances be an objection to relief that the applicant is seeking to resile from the very agreement against which the law has expressly said he may be relieved.

No question of setting aside a sale validly held before the coining into force of the Act was under consideration in the case before their Lordships, and I am unable to deduce any such principle as is contended for by the learned Advocate-General from the decision of their Lordships of the Judicial Committee. The case in Mritunjoy Roy and Another Vs. Netai Chand Dutt and Others, was a case in which the sale was set aside: that was, however, a case in which the matter came up to the High Court when the sale was pending confirmation in accordance with the provisions of Section 35, Bengal Money-lenders Act. The matter, therefore, was at large and it was open to the Court either to confirm the sale or not to confirm it. The sale appears to have been held in that case after the Bengal Money-lenders Act had come into force, and the question of confirming the sale under that very Act was in issue. That decision can be no authority for the proposition that a sale validly held before the coming into force of the Act can be set aside under the provisions of the Act, when those provisions do not say so either in express words or by necessary implication. On behalf of the decree-holder also several decisions of the Calcutta High Court have been placed before us. As I have already stated, no useful purpose will be served in considering those decisions which were given with reference to the terms of Section 36, Bengal Money-lenders Act. I may only refer to one such decision in Sambhu Charan Dey v. Hrishikesh Dey 49 C.W.N. 367 where it was held that even u/s 36, Bengal Money-lenders Act, the Court reopens a decree only for the purpose of and so far as it is necessary for giving relief to the borrower against specific evils sought to be remedied by the Act, namely, liability for interest in excess of the limits specified. It was further observed that the passing of a new decree did not mean that the old decree and all adjudications implied thereunder were totally gone, and that the parties were not relegated to their rights and liabilities on the original cause of action. The position under the Bengal Money-lenders Act has been further clarified in Jadu Nath Roy and Others Vs. Kshitish Chandra Acharji Choudhury and Another, , where it was pointed out that the right conferred on the judgment-debtor under Clause (c) of Sub-section (2) of Section 36 of the Bengal Act was in the nature of jura in re alieno, the title being still in the decree-holder purchaser, but burdened with the enjoyment of the judgment-debtor as long as he pays the instalments payable under the new decree; when the new decree is fully paid up he becomes the owner, for the decree-holder purchaser would not be considered to be owner, for the debt due to him in consideration of which he had purchased the property had been discharged by payment. It has, therefore, been contended by learned Counsel for the decree-holder that even under the Bengal Act the title of the decree-holders under the purchase does not disappear: that title remains and possession is given to the judgment-debtor for the purpose of paying up the amount under the new decree. I do not think any useful purpose will be served by investigating further the position under the Bengal Money-lenders Act, as I am clear in my mind that Section 86, Bengal Money-lenders Act, goes much further than any of the provisions of the Orissa Money-lenders Act, and the case before us must be decided on the terms of the various sections of the Orissa Money-lenders Act and not by the principles laid down in several Calcutta decisions with reference to Section 36, Bengal Money-lenders Act. For the reasons given above, the appeal of the judgment-debtor must be dismissed.

The appeal of the decree-holder can, I think, be disposed of in a few words. Learned Counsel for the decree-holder contends that u/s 10(1), Orissa Money-lenders Act, the amount of interest for the period preceding the institution of the suit cannot be greater than the amount of the loan originally advanced. He contends, therefore, that the learned Subordinate Judge should not have fixed the limit of Rs. 14,000 without taking into consideration interest pendente lite. It is sufficient to point out that the suit was brought in 1935 and the period antecedent to the institution of the suit was a period of about eight years only. u/s 11 of the Act the Court could relieve the debtor of all liability in respect of any interest in excess of nine per centum simple per annum in the case of a secured loan. The interest at that rate for a period of 8 years would be much less than Rs. 7000. Calculated at 9 per cent, per annum simple the interest on the principal sum of Rs. 7000 would be Rs. 630. The learned Subordinate Judge has allowed interest to the maximum extent of Rs. 7000, which would cover a period of more than 10 years. Therefore, I am unable to accept the contention of the decree-holder that the learned Subordinate Judge has not given her interest pendente lite.

The result, therefore, is that both the appeals fail and are dismissed. In the peculiar circumstances, the parties will bear their own costs for the hearing of the appeals in this Court.

Ayyar J.

I agree. Arguments based on analogy are sometimes apt to be misleading. The Bihar Money-lenders Act specifically exempted decrees from the operation of "reopening the transaction " and the Bengal Act in Section 36, provided, among other relief to the borrower, for the judgment-debtor being restored to possession and continuing in possession so long as he pays off the dues, as fixed by the Court. But the Orissa Act contains no provision for unsettling a sale which has already taken place or for disturbing a valid title which has already been acquired before the relevant date, in the process of "reopening the transaction" u/s 11(1)(i), Orissa Money-lenders Act. The Court cannot stretch the words of a statute in such a way as to import remedies which are not specified in the statute itself.