JUDGMENT Derbyshire, C.J. - On April 14th, 1931, one Reazul Hossain of No. 25, Zakaria Street, Calcutta, borrowed a sum of rupees ten thousand from Ratindra Nath Dutt. The borrower gave a mortgage of his share of No. 25, Zakaria Street to secure the loan. The interest secured by the mortgage deed was at the rate of ten per cent, per annum with quarterly rests. The borrower is described in the deed as a Mahomedan trader. The lender was an Attorney. The lender transferred his rights under the mortgage to Chatoo Lal Dey and the borrower transferred his rights in the equity of redemption to Hafiz Shamsed Ahmed. Chatoo Lal Dey is a money-lender. It does not appear what Hafiz Shamsed Ahmed is. 2. On May 20th, 1941, Chatoo Lal Dey instituted a mortgage suit against Hafiz Shamsed Ahmed. Thereupon on May 30th, 1941, Hafiz Shamsed Ahmed who was the Defendant in the mortgage suit made an application by way of motion to a Judge of this Court, citing Chatoo Lal Dey, Plaintiff in the mortgage suit, as Respondent. The purpose of that application was to obtain relief under sec. 36 of the Bengal Money-Lenders Act of 1940. We are not in this appeal concerned with the relief that was claimed; it is sufficient to say that it involved a reduction of the amount claimed by the Plaintiff in the suit and an application for payment by instalments spread over ten years. The Plaintiff replied to that application by alleging that the original loan under the mortgage was a commercial loan within sec. 2, sub-sec. (4) of the Bengal Money-Lenders Act and that in consequence the applicant, the Defendant, was not entitled to any relief under the Bengal Money-Lenders Act. It will be useful here to cite sec. The Plaintiff replied to that application by alleging that the original loan under the mortgage was a commercial loan within sec. 2, sub-sec. (4) of the Bengal Money-Lenders Act and that in consequence the applicant, the Defendant, was not entitled to any relief under the Bengal Money-Lenders Act. It will be useful here to cite sec. 2(4) of the Bengal Money-Lenders Act which provides: In this Act, unless there is anything repugnant in the subject or context 'commercial loan' means a loan advanced to any person to be used by such person solely for the purposes of any business or concern relating to trade, commerce, industry, mining, planting, insurance, transport, banking or entertainment, or to the occupation of wharfinger, warehouseman or contractor or any other venture of a mercantile nature, whether as proprietor or principal or agent or guarantor: Explanation:-Notwithstanding anything contained in any agreement relating thereto, a loan shall not be deemed to be a commercial loan unless it is in substance a loan to be used solely for any of the purposes referred to in this clause 3. Sec. 40(5) of the Bengal Money-Lenders Act provides: Notwithstanding anything contained in any law for the time being in force, in any suit, or proceeding, the burden of proving that a loan is a commercial loan shall be on the money-lender who advanced the loan. 4. For purposes of these proceedings the assignee of the money-lender is under the same obligation with regard to the burden of proof as the moneylender who advanced the loan. It is therefore necessary that the moneylender's assignee should show that the loan in question was to be used solely for the purpose referred to in this clause. In other words, in order to take the case out of the beneficial provisions of the statute, the moneylender's assignee must prove that the loan was a commercial loan. There was an affidavit by the Plaintiff to the suit, the assignee of the money-lender, Chatoo Lal Dey, in which he endeavoured to show that the loan was a commercial loan. The relevant paragraph in that affidavit is paragraph 7 which is as follows:- With further reference to the statement contained in para. 4 of the petition I, Chattoo Lal Dey, for myself say that the sum of Rs. The relevant paragraph in that affidavit is paragraph 7 which is as follows:- With further reference to the statement contained in para. 4 of the petition I, Chattoo Lal Dey, for myself say that the sum of Rs. 10,000 mentioned in the mortgage was originally borrowed by Beazul Hossain who was then the owner of the mortgaged property and who is now serving the Defendant as a Gomastha. The said Reazul Hossain as such Gomastha is looking after all the affairs of the Defendant including suits and proceedings in Court, management of landed properties and of his Soap Factory carried on under the name and) style of Major Soap Company. In the year 1931 and before that, the said Reazul Hossain used to carry on business in miscellaneous goods at Colootolah Street, Calcutta. Shortly before the date of the mortgage the said Reazul Hossain became heavily involved in debt in his said business and ho borrowed the sum of Rs. 10,000 from the said Batindra Nath Dutt to pay the debts of his said) business and to enable him to carry on the same. Thereafter ho suffered further losses in his business and to pay off the debts of his business he had to sell the property forming the subject-matter of this suit to the Defendant for Bs. 17,000, subject to the mortgage in suit. Even then the debts of his business could not be wiped out and he was compelled to close his business and to accept service under the Defendant as a gomastha and he is serving the Defendant as such. There are still decrees against him in his business (but as his creditors found that nothing could be realised from him, they have done nothing. 5. The reply to that by Hafiz Shamsed Ahmed is as follows: With reference to para. 7 of the said affidavit I deny that Beazul Hossain is in sole charge of the management oft my affairs. As far as I have been able to ascertain, Beazul Hossain did not borrow the said sum of Rs. 10,000 from the said Batindra Nath Dutt to pay the debts of his business or to enable him to carry on any business. 6. The learned Judge came to the conclusion that this was a commercial loan. His reasons are not given. For myself I am not at present satisfied that that conclusion is correct. 10,000 from the said Batindra Nath Dutt to pay the debts of his business or to enable him to carry on any business. 6. The learned Judge came to the conclusion that this was a commercial loan. His reasons are not given. For myself I am not at present satisfied that that conclusion is correct. The loan was made by Mr. Dutt to Reazul Hossain. The evidence necessary to enable the Court to decide whether that was a commercial loan or not is best given by the original parties to the loan, and of the two the Defendant Reazul Hossain would be in a position to give better testimony as to whether it was a commercial loan or not. Neither the original lender, Mr. Dutt, nor the original borrower, Reazul Hossain, has given any evidence either orally or by affidavit on that matter. They are the people who could have thrown most light on it. 7. Chatoo Lal Dey was not, so far as his affidavit discloses, present when the loan was made or negotiated. What he says about it in his affidavit is what he has learned from somebody else. In my view that is not satisfactory evidence, nor indeed evidence upon which the Court could act. 8. There is a great tendency in this Court to act upon evidence given in affidavits. If the Court is to act upon the evidence given in an affidavit, it should be satisfied that the provisions of the CPC which relate to affidavits are being complied with. Where there is a conflict of testimony which cannot be decided with any reasonable certainty on affidavits, there should be oral evidence. If the Court decides to act upon an affidavit, it should be satisfied that the affidavit is in accordance with Or. 19, r. 3 (1) which provides: Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory a implications, on which statements of his belied may be admitted; provided that the grounds thereof are stated 9. What the deponent is able to prove of his own knowledge is indicated in sec. 60 of the Evidence Act. The deponent in an affidavit is not entitled to say anything that he likes. 10. What the deponent is able to prove of his own knowledge is indicated in sec. 60 of the Evidence Act. The deponent in an affidavit is not entitled to say anything that he likes. 10. It has been said that this is an interlocutory matter and, therefore, what the deponent believes may be admitted, provided the grounds. for his belief are stated. In my view these proceedings, although they came under the heading of Original Mortgage Suit, were in themselves separate proceedings. 11. The Defendant applied to have the benefit of the Bengal Money-Lenders Act. The Plaintiff replied that it was a commercial transaction and that he was not entitled to the benefit of the Bengal Money-Lenders Act. This application was really a separate proceeding in the larger proceeding of the mortgage suit and the decision of the Judge, (subject of course to appeal) when given, was a final decision upon the rights of the parties under the Bengal Money-Lenders Act. 12. Apparently the word "interlocutory" is not defined in the Code of Civil Procedure, but it has a well-understood meaning amongst lawyers. In a suit there may be an application for further and better particulars of the statement of claim in the plaint or the written statement; that application is an interlocutory application. There may be an application for discovery or interrogatories; that too is an interlocutory application. There may be an application with regard to money in Court or money which it is proposed to pay into Court; again that is an interlocutory application. There may be an application with regard to the time when the suit shall be heard; that would be an interlocutory application. But the judicial decision of the Court which finally settles the rights of the parties in the suit would not be an interlocutory matter. It would be a final matter. There is a definition of "Interlocutory Proceeding" in Osborn's Concise Law Dictionary, 2nd Ed., at p. 166 which is as follows: One taken during the course of an action and incidental to the principal Object of the action, namely, the judgment. Thus, interlocutory applications in an action include all steps taken for the purpose of assisting either party in the prosecution of his case; or of protecting or otherwise dealing with the subject-matter of the action, or of executing the judgment when obtained. 13. Thus, interlocutory applications in an action include all steps taken for the purpose of assisting either party in the prosecution of his case; or of protecting or otherwise dealing with the subject-matter of the action, or of executing the judgment when obtained. 13. As I have said, the order made on this application was intended to settle the rights of the parties under the Bengal Money-Lenders Act, The application, therefore, is not in my view an interlocutory application such as is mentioned in Or. 19, r. 3 (1) of the Code of Civil Procedure. Therefore the affidavit the Court must receive and act upon must be confined to such facts as the deponent is able of his own knowledge to prove. It is quite clear that in paragraph 7 of Chatoo Lal Dey's affidavit there are a great many matters stated which the deponent is not able of his own knowledge (as indicated by sec. 60 of the Evidence Act) to prove. In my view, therefore, the contention of Chatoo Lal Dey that this was a commercial loan has, upon the evidence that was before the Court, not been proved. It may be that this was a commercial loan, but there is no material before the Court upon which the Court can come to that conclusion; it is for the lender to put material before the Court upon which it can, in accordance with the provisions of the Bengal Money-Lenders Act to which I have referred and the law of evidence, come to that conclusion. 14. There have been many occasions in the past when Judges sitting on this Bench have had to comment upon the irregular way in which affidavits are prepared. As far back as 1909, Sir Lawrence Jenkins and Woodroffe, J., commented on it in the case of Padmabati Dasi v. Rasik Lal Dhar (1). My predecessor, Sir George Rankin, I am informed, also commented upon it; and I myself have had to comment previously on the way in which the remarks of Sir Lawrence Jenkins and Woodroffe, J., in Padmabati Dasi's case ILR 87 Cal. 259 at pp. 260, 261 (1909) have been ignored. My predecessor, Sir George Rankin, I am informed, also commented upon it; and I myself have had to comment previously on the way in which the remarks of Sir Lawrence Jenkins and Woodroffe, J., in Padmabati Dasi's case ILR 87 Cal. 259 at pp. 260, 261 (1909) have been ignored. Once again I draw attention to this matter and say that unless affidavits are submitted in accordance with law, it is the duty of the Court to reject them and, after all these warnings, to see that clients who employ Attorneys who are responsible for such affidavits are not made to pay for such negligent work. 15. For these reasons this appeal must be allowed and the matter remitted to the Court of first instance to be dealt with in accordance with law. The parties will be at liberty to produce before the Court such evidence as the Court considers necessary and proper. 16. The Appellant will have the costs of this appeal. The costs of the proceedings in the Court below will follow the decision of the learned Judge when the matter goes back, subject to my remarks above as to improper affidavits. Nasim Ali, J. I agree.