Sk. Md. Abel and Abed v. Altaf Hossain — 1943 DIGILAW 119 (CAL)

JUDGMENT 1. Thus Rule has been obtained u/s 25 of the Provincial Small Cause Courts Act, and is directed against an order made by the Small Cause Court Judge at Sealdah dismissing a suit commenced by the petitioner under S. 36(1) of the Bengal Money-Lenders Act, 1940. 2. The material facts are not in controversy and may be shortly stated as follows in January, 1941, the opposite party instituted a suit against the Court of Small Causes at Sealdah for recovery of a sum of Rs.273/- alleged to be due as principal and interest on a promissory note executed by the latter on June 1, 1948. The petitioners did not appear or contest the suit and an ex parte decree was passed in favour of the plaintiff for the entire amount claimed by him on January 27, 1941. On February 17, 1941, the petitioner filed an application for reopening the decree by way of review under S 36(6)(a)(ii) of the Bengal Money Lenders Act, and the ground alleged was that as the opposite party had already realised more than double the principal amount actually advanced by him, he was not entitled to recover any further amount from the latter. This application was allowed, and the Small Cause Court Judge reopened the ex parte decree, and made a new decree in accordance with the provisions of the Bengal Money Lenders Act. 3. Against this order the opposite party filed a petition of revision in this Court, and obtained Rule which was heard by my Learned brother Henderson, J. on November 28, 1941. The learned Judge made the Rule absolute and reversed the order made by the Small Cause Court Judge being of opinion that as the suit was instituted after the passing of the Bengal Money-Lenders Act, the defendant petitioner might and ought to have claimed relief under the Act in the suit itself; and this not being done the decision operated as res judicata, and the application for review made u/s 36(6)(a)(ii) of the Bengal Money-Lenders Act, was barred. It was further held that the proviso to S. 36(1) of the Bengal Money-Lenders Act excluded the operation of the section from cases like this where the decree was passed after the first day of January 1939. The result was that the Rule was made absolute, and the ex parte decree obtained by the opposite party was affirmed. 4. It was further held that the proviso to S. 36(1) of the Bengal Money-Lenders Act excluded the operation of the section from cases like this where the decree was passed after the first day of January 1939. The result was that the Rule was made absolute, and the ex parte decree obtained by the opposite party was affirmed. 4. The petitioner thereupon made an application for setting aside the ex parte under Order IX, rule 13 of the Code of Civil Procedure. That application being rejected, he instituted the present suit under S. 36(a)(ii) of the Bengal Money-Lenders Act praying for the reopening of the ex parte decree on the same ground that was put forward in the earlier application for review. The Small Cause Court Judge dismissed the suit on the ground that the matter was concluded by the decision of the High Court in the Revision case referred to above. It is the propriety of this decision which is challenged before us in this Rule. 5. Mr. Paresh Nath Mukherjee who appears on behalf of the petitioner contended that the words "Notwithstanding anything contained in any law for the time being in force", occurring at the beginning of S. 36 exclude the operation of the rule of res judicata contained in S. 11 of the CPC or otherwise from any suit or proceeding commenced under the section. He contended that it was open to the borrower to institute a suit claiming relief under S. 36 of the Bengal Money-Lenders Act although the same relief was denied to him in the suit for recovery of the loan which was instituted subsequent to the passing of the Act or in the earlier application made u/s 36(6)(a)(ii) of the Act. It is said that Henderson, J was not right on either of the two points upon which he based his decision in the Civil Revision Case mentioned above. It is contended that the ex parte decree would not bar an application u/s 36(6)(a)(ii) eHeHh by any rule of res judicata nor was it a decree exempted from the operation of S. 36 of the Bengal Money-Lenders Act by reason of the proviso attached to that section. 6. The question raised are undoubtedly important and require careful consideration. It is contended that the ex parte decree would not bar an application u/s 36(6)(a)(ii) eHeHh by any rule of res judicata nor was it a decree exempted from the operation of S. 36 of the Bengal Money-Lenders Act by reason of the proviso attached to that section. 6. The question raised are undoubtedly important and require careful consideration. It seems to me to be doubtful whether the legislature did at all intend that a suit or an application would lie for reopening a decree which was made in a suit commenced after the passing of the Act. It would clearly be the duty of the court to apply the provisions of the Act to a suit filed after the Act came into force, and the defendant can very well claim all the reliefs which he is entitled to in the suit itself. If the Court refuses him the relief prayed for, he would be entitled to challenge the decision by way of appeal where the decision is open to appeal and could also file an application for proper grounds for such review. The legislature, however, has nowhere stated expressly that S. 36 of the Bengal Money-Lenders Act is to be confined to decrees in suits filed after the commencement of the Act. Proviso (ii) attached to S. 36(1) prevent the Court from exercising its powers under the section in such a way as to affect any decree of a Court other than a decree in a suit to which the Act applies which was not fully satisfied by the first day of January, 1939. According to the definition given in S. 2(22) of the Act, the expression "suit to which the Act applies" is wide enough to cover any suit or proceeding which is instituted after the first day of January, 1939, or is pending on that day. A suit instituted after the passing of the Act would obviously come within this definition. 7. The other limitation introduced by the proviso is that decree must not be fully satisfied by the first day of January, 1939. It may be argued that this clause can be predicated only of a decree passed prior to the first day of January, 1939, for it is inappropriate to speak of a decree passed after the first day of January, 1939, that it was satisfied that date. It may be argued that this clause can be predicated only of a decree passed prior to the first day of January, 1939, for it is inappropriate to speak of a decree passed after the first day of January, 1939, that it was satisfied that date. My learned brother Henderson, J. took this view in the Civil Revision Case referred to above. 8. This point, however, has been considered since then in Sailabala Dasi v. Haris Chandra Das, 46 CWN 875, to which I myself was a party. It has been held that this expression does not exclude a decree passed subsequent to the first day of January, 1939 which could not possibly be satisfied before that date. I must hold, therefore, that there is nothing in S. 36 of the Bengal Money-Lenders Act a sit stands which makes its provisions inapplicable to decrees made in suits brought after the Act came into force. 9. The question now is to what extent the rules of res judicata are shut out from suits or proceedings under S. 36 of the Bengal Money-Lenders Act. 10. Mr. Mukherjee lays great stress upon the opening words of S. 36 and contends that the rule of res judicata or for the matter of that the provisions of any other law for the time being in force are entirely excluded for the purposes of S. 36 of the Bengal Money-Lenders Act. In support of his contention he places reliance upon a Full Bench decision of the Allahabad High Court in Shri Nath v. Puran Mal, 1942 Allahabad 45. 11. I do not think that this contention can be accepted in this broad form. Section 36(1) of the Bengal Money-Lenders Act empowers the Court to grant reliefs in such ways as are specifically enumerated in the section, and these powers can be exercised either in a suit to which the Act applies or in a suit expressly brought for the purpose whether heard ex parte or otherwise "notwithstanding any thing contained in any other law for the time being in force". This means, in my opinion, that in exercising the powers enumerated in the section, the Court could not be trammelled or restricted in any way by the provision of any other law for the time being in force. This means, in my opinion, that in exercising the powers enumerated in the section, the Court could not be trammelled or restricted in any way by the provision of any other law for the time being in force. Indeed, the principle of res judicata and the provisions of other laws have got to be ignored to a certain extent by the Court when it is called upon to exercise its powers under S. 36 of the Bengal Money-Lenders Act. The reopening of a decree without any ground for review recognised by the CPC the scaling down of interest payable under a valid contract and embodied in a decree which cannot be touched under the ordinary law; the reopening of accounts already closed in law; and the ordering of refund where no refund is otherwise permissible are all matters which trench upon the CPC and the Contract Act. But this does not mean that the court in deciding a suit or proceeding under S.36 of the Bengal Money-Lenders Act would not be governed by the rules of evidence or procedure and all the provisions of laws which are in force in this country, and not merely so much of them as would militate against the exercise of the powers which are expressly conferred by this section are to be deemed to be non-existent. The lender may not certainly plead res judicata as a bar to the courts' exercising powers under S. 36 but when the Court does exercise it powers under this section, and exercises it in a particular way, its decision must be taken to be conclusive between the parties under the ordinary rules of res judicata, and cannot be challenged in any subsequent suit or proceeding brought for identical relief. 12. Section 36(1) of the Bengal Money-Lenders Act expressly provides that the powers of the Court can be exercised either in a suit to which the Act appellate or in a suit expressly instituted for the purpose. 12. Section 36(1) of the Bengal Money-Lenders Act expressly provides that the powers of the Court can be exercised either in a suit to which the Act appellate or in a suit expressly instituted for the purpose. In my opinion, once the powers are exercised and relief is granted or denied to the borrower in the exercise of these powers, the question cannot be reagitated between the same parties even though the powers were exercised in the suit itself which was instituted by the lender for recovery of the money and which would be a 'suit' to which the Act applies according to the definition given in the Bengal Money-Lenders Act. The aggrieved party may appeal against the order which denies him the relief, or he can file an application for review in the ordinary way but subject to the results of such appeal or review the decision would be final. It is one thing to say that the principle of res judicata would not stand in the way of the Court's granting reliefs under S. 36 of the Bengal Money-Lenders Act, whereas it would be a different thing altogether to say that even if the Court had refused to grant relief in the exercise of its powers, the refusal would not stand in the way of a fresh proceeding for the same relief. 13. The decision in Shri Nath v. Puran Mal 1942 All 45, does not, in my opinion, assist the petitioner in the least. That was a case under the Agriculturists' Relief Act (United Provinces Act No. XXVII of 1934) of the decree in the suit which was filed after the Act come into force. It was held that that did not disable him from subsequently claiming the instalments as provided by S 5(1) of the Agriculturists' Relief Act: and that no question of res judicata could arise for the section was expressly prefaced by the words, "Notwithstanding anything contained in the Code of Civil Procedure, 1908. 14. Now S. 5(1) of the U.P. Agriculturists' Relief Act stands as follows : Notwithstanding anything contained in the Code of Civil Procedure, 1908,............... The Court shall........... at any time on the application of the judgment debtor and after notice to the decree holder direct that any decree for money........ 14. Now S. 5(1) of the U.P. Agriculturists' Relief Act stands as follows : Notwithstanding anything contained in the Code of Civil Procedure, 1908,............... The Court shall........... at any time on the application of the judgment debtor and after notice to the decree holder direct that any decree for money........ passed by it against agriculturist whether before or after the Act comes into force shall be converted into a decree for payment by instalments drawn up in such terms as it thinks fit in accordance with the provisions of S 3. 15. The provisions of S, 5(1) of the Agriculturists' Relief Act are to some extent similar to those of S. 34(1)(b)(ii) of the Bengal Money-Lenders Act and expressly empower the Court to grant instalments to the judgment-debtor although the application was made after the decree was passed. No such powers of granting instalments can be exercised by the Court under the provisions of the CPC or of any other provision of law, and but for S. 5 of the Agriculturists' Relief Act, an application of this character would be met by the principle of res judicata. The Court was, therefore, perfectly right in holding that for purposes of S. 5(1) of the Agriculturists' Relief Act, the agriculturist debtor was entitled to claim instalments even though he omitted to make that prayer in the suit itself and no question of res judicata could arise as the provisions of that section have to be given effect to notwithstanding the provisions of the Code of Civil Procedure. This decision is not in any way inconsistent with the view I have taken. As was observed by Iqbal Ahmad, C.J. in course of his judgment, the legislature in its discretion though fit to give to an 'agriculturist' double opportunity of claiming instalments in the case of decrees passed after the Act came into force. The omission to ask for instalments in the suit itself therefore does not disentitle the borrower to pray for the conversion of the decree into an instalment decree under S. 5(1) of the Act. I do not think that the decision would have been the same if the agriculturist had prayed for instalment in the suit itself, and the Court in exercise of its powers under s. 5(1) decided not to grant him the relief. 16. I do not think that the decision would have been the same if the agriculturist had prayed for instalment in the suit itself, and the Court in exercise of its powers under s. 5(1) decided not to grant him the relief. 16. In the case before us the original decree in the money suit was made ex parte in the absence of the defendant. That, by itself, is not very material for the Court is authorised to exercise its powers under S. 36 of the Bengal Money-Lenders Act even though the suit is heard ex parte. If, therefore, the Court had actually purported to exercise its powers under S. 36 Bengal Money-Lenders' Act when it decided the suit, the decision, in my opinion, would be final and conclusive. The records of this case show that the Court delivered a very brief and summary judgment, and it contains no indication that the learned Judge addressed himself to any questions arising under the Bengal Money-Lenders Act and purported to exercise his powers under S. 36 of the Act. 17. The case of the petitioner is that he has paid double the amount of the original loan advanced, and consequently, he ought to be relieved of any liability in excess of the limits specified, in S. 30(1)(a) of the Bengal Money-Lenders Act. Section 30(1) is applicable to decrees passed after the commencement of the Act, and the Court, therefore, is empowered to exercise its powers in favour of the borrower under S. 36(1)(c). As I think that the powers were not exercised in the suit itself, the ex parte decree does not in my opinion stand in the way of the borrower claiming relief in a suit under S. 36(1) Bengal Money-Lenders Act. But even though the ex parte decree does not operate as res judicata the decision on the application for review u/s 36(6)(a)(ii) of the Bengal Money-Lenders Act, in my opinion effectively bars the present suit. Under sub-s. (6) of S. 36 Bengal Money-Lenders Act, the Court can exercise the same powers as are conferred by sub-s. 1 and 2. In exercise of these powers, the Court rejected the application for reopening the decree by way of review under clause (a)(ii) of the sub-section, being of opinion that S. 36 Bengal Money-Lenders Act was not applicable to a case like this. In exercise of these powers, the Court rejected the application for reopening the decree by way of review under clause (a)(ii) of the sub-section, being of opinion that S. 36 Bengal Money-Lenders Act was not applicable to a case like this. Whether the decision was right or wrong is immaterial, for the rule of res judicata applies even though the earlier decision is erroneous in law. The application for review was not dismissed on any preliminary ground relating to limitation or defect in the form. The Court went into the merits of the case and dismissed it on a ground, which is totally destructive of the petitioner's right to claim any relief under S. 36 of the Bengal Money-Lenders Act. It cannot be said that as the proceeding under S. 36(6)(ii) was not a suit, but a miscellaneous proceeding the ground on which the order was based could not operate as res judicata though the order itself would be conclusive. I do not think that the principle enunciated in Mahalakshi Bank v. Maulvi Abdul Khaleque (43 CWN 1046) which finds support from the pronouncement of the Judicial Committee in Babu Bhagawandin v. Gir Har Swaroop (67 IA 1) applies to the present case. It is true that the application for review u/s 36(6)(a)(ii) is not strictly speaking a suit, but it has the same character as a suit and it is not a summary proceeding. As was pointed out by this Court in Sukdeb Jee Sarkar v. Ram Krishna Lahiri 45 CWN 924, the scope of enquiry before the Court, which is called upon to exercise its powers on an application u/s 36(6)(a)(ii) of the Bengal Money-Lenders Act is very wide. Like an ordinary application for review of judgment it is not confined to matters dealt with in the judgment itself. The Court can re-open previous transaction and dealings and direct fresh accounts to be taken and the proceeding really relates to original matter in the nature of a suit. I hold therefore that the decision on the review application operates as res judicata, and the view taken by the Small Course Court Judge is right. The result is that the rule is discharged. We make on order as to costs. Pal, J. - I agree that this Rule should be discharged. 2. I hold therefore that the decision on the review application operates as res judicata, and the view taken by the Small Course Court Judge is right. The result is that the rule is discharged. We make on order as to costs. Pal, J. - I agree that this Rule should be discharged. 2. The Bengal Money-Lenders Act, 1960, (Bengal Act X of 1940) came into force on the 1st September, 1940. 3. On the 6th January, 1941, the opposite party in this case instituted S.C.C. Suit No.35 of 1941 in the Court of the Small Causes at Sealdah against the present petitioner for the recovery of a sum of Rs.273/- due on a promissory note dated the 1st June, 1938. The said suit was decreed ex parte on the 27th January, 1941. The petitioner made an application for review in that suit u/s 36(6)(a)(ii) of the Bengal Money-Lenders Act, 1940, on the 17th February, 1941, praying that the Court which passed the above decree might, in exercise of the powers conferred by sub-ss. (1) and (2) of S. 36, reopen the decree and pass a new decree in accordance with the provisions of the Bengal Money-Lenders Act, 1940 reopening previous transactions and accounts purporting to close previous dealings and releasing the petitioner of all liability in excess of the limits specified in clauses (1) and (2) of S. 30 of the Act. The learned Judge on the Small Cause Court allowed this application. But the said decision of the Small Court Judge was set aside in revision by this Court on the 20th November, 1941, in Civil Rule No. 788 of 1941.There our learned brother Henderson, J, held: (1) That Section 36(6)(a)(ii) of the Bengal Money-Lenders Act, 1940, permits only the review of "a decree in a suit to which this Act applies which was not fully satisfied by the first day of January, 1939", and that this contemplates only decrees passed before the 1st day of January, 1939. A decree passed in January,1941, cannot be interpreted as 'a decree which was not fully satisfied by the first day of January, 1939' without doing violence to the language used. A decree passed in January,1941, cannot be interpreted as 'a decree which was not fully satisfied by the first day of January, 1939' without doing violence to the language used. (2) That the section does not empower the Court to review any decree passed after the Act came into force; the relief claimed by way of such review could have been claimed in the suit itself and 'it would be thus quite pointless to make provision for a review on such a ground'. 4. The new decree made in exercise of the powers under S.36(1) and (2) of the Act was set aside and the old decree was restored by our learned brother, Henderson, J. 5. The petitioner then instituted the present suit under S 36(1) of the Bengal Money-Lenders Act, 1940, for the same relief in respect of the said decree. 6. The learned Judge of the Small Causes Court dismissed this suit holding that in view of the above decision of the High Court the same was not maintainable. 7. The present Rule is directed against this decision, calling upon the opposite party to show cause why the above decision should not be set aside on ground No.3 of the petition, which stands thus: "For that the learned Judge has misconstrued S. 36(1) of the Bengal Money-Lenders Act X of 1940 in holding that the present suit is not maintainable and should have held that the principles of res judicata are inapplicable to cases of the present type and that, in any event, the present suit is not hit by the said principles and is not barred either by reason of the previous decision of the Hon'ble Court in the 'review' matter or for any reason whatsoever and is perfectly maintainable. 8. Mr. Mukherjee, appearing in support of the Rule, contends: 1. That the words "notwithstanding anything contained in any law for the time being in force" with which S. 36(1) of the Bengal Money-Lenders Act, 1940, opens exclude the operation of S. 11 of the CPC or of the principles of res judicata from the field of the proceedings contemplated by the section. Consequently a suit brought by a borrower for relief under this section is maintainable in spite of the events that happened in this case as stated above. 2. Consequently a suit brought by a borrower for relief under this section is maintainable in spite of the events that happened in this case as stated above. 2. That in granting relief in a suit brought by a borrower under S. 36(1) of the Act the Court is not debarred by Proviso (ii) to the Section from doing anything affecting the decree in question in the present matter: (a) A decree made after the first day of January, 1939, is necessarily "a decree which was not fully satisfied by the first day of January, 1939" within the meaning of the Proviso. 9. In support of his first contention Mr. Mukherjee relies on the decision of a Full Bench of the Allahabad High Court in ILR (1942) All. 45 (FB) in respect of a similarly worded statutory provisions. In support of his last contention Mr. Mukherjee relies on a decision of this Court (1942) 46 CWN 875 (Mukherjee and Bank JJ). 10. Mr. Das appearing to show cause, contends: 1. That the questions (1) whether the ex parte decree dated the 27th January, 1941, operates as res judicata so as to bar a proceeding for relief under S. 36 of the Bengal Money-Lenders Act, 1940, and (2) whether the decree made on the 27th January, 1941, can be said to be "a decree which was not fully satisfied by the first day of January, 1939" within the meaning of that section are themselves no longer open for decision in this matter, being res judicata in view of the decision of this Court in Civil Rule 788 of 1941 referred to above. 2. That the remedies provided by S. 36 are in the alternative and that the petitioner having elected to pursue the remedy provided in clause (6)(a)(ii) of S. 36, cannot now turn to the remedy provided in clause (1) of the section. 3. That the words "notwithstanding anything contained in any law for the time being in force" with which S. 36(1) of the Bengal Money-Lenders Act, 1940 opens, refers only to the law in relation to the relief empowered by the Section and does not refer to any law affecting the proceeding in realisation of that relief. 4(a)That the words "a decree.... That the words "notwithstanding anything contained in any law for the time being in force" with which S. 36(1) of the Bengal Money-Lenders Act, 1940 opens, refers only to the law in relation to the relief empowered by the Section and does not refer to any law affecting the proceeding in realisation of that relief. 4(a)That the words "a decree.... which was not fully satisfied by the First day of January, 1939" in Proviso (ii) to S. 36(1) by necessary implication mean and refer to a decree made before that date. (b) That apart from the proviso, sub-s. (1) of S 36 of the Bengal Money-Lenders Act, 1940, nowhere authorises the Court to do anything affecting a decree of a Court. (1) That the proviso is there only ex abundanti cautela and cannot be taken as implying that but for such a proviso the powers given in the several clauses of S. 36(1)(a) would have been comprehensive enough to include the doing of anything affecting a decree of a Court also. 11. In support of his first contention Mr. Das relies on the decisions of this court in Tarini Charan v. Kedar Nath (1929) 56 Cal 723 (FB): Ram Gopal Majumder v. Prasanna Kumar Samad (1905) 2 CLJ 508 (Maclean CJ & Casperz J.): Kailash Chandra v. Gopal Chandra (1914) 18 CWN 1204 (Jankins CJ & Woodroffe, J.). 12. In support of his contention Mr. Das relies on the principle underlying the decision in 48 Cal 157, 24 CWN 1020. 13. The fourth contention raised by Mr. Das goes with the second contention raised by Mr. Mukherji and I shall take them up first. 14. Section 30 and 36 of the Bengal Money-Lenders Act, 1940, are closely inter-related. Section 30 provides for rights and liabilities in modification of rights and liabilities arising out of the legal relation under the hitherto existing law or the agreement of the parties and S. 36 provides for the relief in respect of such rights and liabilities. 15. Clauses (a) and (b) of S. 36(1) of the Bengal Money-Lenders Act, 1940, help the determination of the ultimate relief available to the borrower, but clauses (c), (d) and (e) provide for the real relief that may be given to him. In the present case clause (c) alone is relevant. 16. 15. Clauses (a) and (b) of S. 36(1) of the Bengal Money-Lenders Act, 1940, help the determination of the ultimate relief available to the borrower, but clauses (c), (d) and (e) provide for the real relief that may be given to him. In the present case clause (c) alone is relevant. 16. By this clause (c) of S. 36(1) the court is empowered to release the borrower of all liability in excess of the limits specified in clauses (1) and (2) of S. 30. 17. Section 30 opens with the words "notwithstanding anything contained in any law for the time being a force, or in any agreement". These opening words by themselves are not comprehensive enough to exclude the operation of a decree of a court. 18. Sub section (1) of the section then proceeds to limit the liability of a borrower 'after the commencement of this Act.' 19. Clause (1)(a) lays down "No borrower shall be liable to pay after the commencement of this Act any sum in respect of principal and interest which together with any amount already paid or included in any decree in respect of a loan exceeds twice the principal of the original loan;...... whether........ such decree was passed...... before or after the commencement of this Act. 20. According to this provision, if a borrower took a loan of Rs.500/-, paid Rs.900/- and then allowed a decree (say for Rs.1000/-) to be passed against him in respect of this loan even after the commencement of this Act, he will not be liable to pay any sum exceeding Rs.100/-, in spite of the decree passed after the commencement of this Act and in spite of the fact that though he might and ought to have taken the defence in the suit that his liability could not exceed Rs.100/-, he did not take that defence in the suit. 21. As regards the rate of interest, clause (c) to S. 30(1) itself does not speak of any decree already passed. But sub-s. (2) of S. 30 provides for such a case, and, in case of decrees already passed, limits its operation only to decree passed before the commencement of the Act. 22. 21. As regards the rate of interest, clause (c) to S. 30(1) itself does not speak of any decree already passed. But sub-s. (2) of S. 30 provides for such a case, and, in case of decrees already passed, limits its operation only to decree passed before the commencement of the Act. 22. It follows, therefore, that the power given by S. 36(1)(c) of the Act to release the borrower of his liability extends in some instances even to the case where such liability is merged in a decree passed after the commencement of the Act. 23. The extent of the power in this respect is thus dependent upon the nature of the excess liability in question. 24. Under S. 36(1) the Court cannot give any relief in respect of excess rate of interest where there has already been a decree after the commencement of the Act. No doubt such relief was open to the borrower in the original suit. If he did not avail himself of it and if a decree was made against him after the commencement of this Act, he can no longer seek any relief in this respect under S. 36(1) of the Act. 25. When and in so far as the relief claimed is in respect of the excess under S. 30(1)(a) over twice the principal of the original loan, the power given by S. 36(1)(c) extends even to cases where there has been a decree after the commencement of this Act. 26. In the above view, so far as the relief claimed in respect of any excess rate of interest is concerned, that relief is not at all empowered by S. 36(1) when there has already been a decree in respect of the loan after the commencement of the Act. As in the present case there has been such a decree no other question so far as this relief is concerned arises for our decision in this case. The decree cannot be reopened for this purpose and consequently sub-s. (2) of S. 36 does not come into operation. 27. As regards the relief in respect of the excess over twice the principal of the original loan the other questions raised in this rule still remain to be considered. 28. The decree cannot be reopened for this purpose and consequently sub-s. (2) of S. 36 does not come into operation. 27. As regards the relief in respect of the excess over twice the principal of the original loan the other questions raised in this rule still remain to be considered. 28. The proviso (ii) to S. 36(1) is not, in the above view, a reservation ex abundanti caurela, but is in the nature of an excepting clause, as, otherwise, the power conferred by the section is comprehensive enough to include interference with the decree of courts also to the extent indicated above. 29. Section 36(1)(c) read with S. 30(1) and (2) confers on the Court power to do things that may affect even a decree of a court as indicated above. This decree in some cases will include even a decree passed after the commencement of the Act. In some cases it can only be a decree passed before the commencement of the Act. 30. The proviso lays down that in exercise of these powers the court shall not do anything which affects any decree of a court other than certain decrees. 31. The manner in which the proviso is expressed indicates that the legislature primarily intends to withdraw from the operation of the powers the entire field covered by any decree of a court and then to yield a portion of this excepted field to the operation of the power. 32. The question to be determined is which portion of the withdrawn field covered by the decree of a court is yielding to the operation of the power by the words "other then a decree in a suit to which this Act applies which was not fully satisfied by the first day of January, 1939. Section 2(21) defines 'suit' as including 'an appeal'. Section 2(22) defines 'suit to which this Act applies': the expression is defined to mean - (1)(a) any suit or proceeding instituted or filed on or after the first day of January, 1939, or after the commencement of the Act (vide clauses (a), (b) and (c) of the definition) (b) any suit where an appeal arising from it is instituted or filed on or after the first day of January, 1939, or after the commencement of this Act. (2)(a) any suit or proceeding pending on the first day of January 1939, (b) any suit where an appeal arising from it is pending on the first day of January, 1939. (3) Something more conveyed by the words "and includes a proceeding in execution. In the above analysis I have taken the words 'suit' or 'proceeding' in their primary sense. The results of their extended meaning as including appeals are shown separately. So far as the item (a) is concerned, obviously there cannot be a decree in such a suit before the first day of January, 1939. It is to be initiated on or after that date. So far as the item (b) is concerned, there can be a decree made before the first day of January, 1939, though that decree may be subject to any modification or reversal in the appeal. This decree in appeal must necessarily be made after the first day of January, 1939. So far as the items 2(a) and (b) are concerned, a decree in such a suit may be made (i) before the first day of January, 1939. (ii) on or after the date but before the commencement of this Act (the 1st September, 1940). (iii) after the commencement of this Act. There is some difficulty in determining what the item (3) is intended to cover. If the words "and includes a proceeding in execution" be taken as extending the meaning of 'suit' or 'proceeding' in the first two items then the third item perhaps will read as follows: - (1) any execution proceeding (in respect of a decree made in a suit or proceeding) instituted or filed on or after the first day of January, 1939 or after the commencement of this Act, or pending on the first day of January, 1939. 33. In that case such an execution itself will be "a suit to which this Act applies and obviously 'a decree in such a suit' would not mean and refer to the decree in execution of which the proceeding is initiated but would only refer to any decree (if any) made in the execution proceeding itself. 34. The word "and includes a proceeding in execution" in the definition may however be taken as providing a third item like the following. 34. The word "and includes a proceeding in execution" in the definition may however be taken as providing a third item like the following. any suit or proceeding in respect of the decree in which a proceeding in execution is instituted or filed on or after the first day of January, 1939, or after the commencement of the Act or is pending on the date). In this case also the decree may be one passed 91) before the first day of January, 1939, or (2) on or after that date but before the commencement of the Act or (3) after the commence of the Act. 35.Thus "in a suit to which this Act applies" there may be a decree (i) before the first day of January, 1939. (ii) on or after the date but before the commencement of this Act (the 1st September 1940). (iii) after the commencement of this Act. 36. The question is which of these three classes of decree the legislature has withdrawn from the protection of the saving provisions contained in proviso (ii) of S. 36(1) of the Act. 37. As has been pointed out above, the proviso (ii) is really in the nature of a qualifying or excepting clause. The protection is extended to "any decree of a court". Then it is withdrawn from certain decrees. In order to fall within the mischief of this clause the decree must be shown to have two infirmities, namely, (i) it must be a decree in a suit to which this Act applies, (ii) it must also be a decree which was not fully satisfied before the first day of January, 1939. 38. The decision in Sailabala Dasi v. Haris Chandra Das (1942) 46 CWN 875 supports the view that the decrees of all the three classes may come within this clause provided they are not fully satisfied by the first day of January, 1939, either because they were not in existence on that date or because, though in existence, as a matter of fact they are not fully satisfied by that date. 39. 39. A contrary view was expressed by our learned brother Henderson, J. in connection with this very matter in Civil Rule No. 788 of 1941 whereby learned brother observed that a decree passed in January, 1941 could not be interpreted as 'a decree which was not fully satisfied by the first day of January, 1939, without doing violence to the language used. 40. With due respect, it must be said that there is much force in what our learned brother Henderson J observed in the above Civil Rule. As the proviso is phrased, this seems to be its more appropriate reading. The proviso however may read thus: 1. In the exercise of these powers the court shall not do any thing which affects any decree of a court (a) other than a decree in a suit to which this Act applies. (i) except when such a decree was fully satisfied by the first day of January, 1939. 41. It is certainly inappropriate to say of any decree passed after the first day of January, 1939, that it was not fully satisfied by that date. The words "which was not fully satisfied etc" however may be taken, not as introducing an additional requirement of the excepted decree but as enacting an exception to the expected decrees. 42. Further, when generally a decree is spoken of as not satisfied by a particular date it is implied that it was passed before that date. But when a decree in 'a suit to which this Act applies' is spoken as "fully satisfied" or as "not fully satisfied" by the first day of January, 1939, it may not always exclude the idea of such a decree being passed after that date. As the definition of the expression ' a suit to which this Act applies' stand, there is at least one case where a decree may be fully satisfied even before it is strictly speaking in existence. In item 1(b) of my analysis given above this may happen where the appeal ultimately confirm the decree of the first court. The appellate decree is the decree in a 'suit to which this Act applies'. Yet it might have been fully satisfied within the meaning of the explanation appended to S. 36(1) by reason of the decree of the first court having been already fully executed. 43. The appellate decree is the decree in a 'suit to which this Act applies'. Yet it might have been fully satisfied within the meaning of the explanation appended to S. 36(1) by reason of the decree of the first court having been already fully executed. 43. One weighty consideration against the view of our learned brother Henderson J, is that if we so read the proviso (ii) to S. 36(1) then the substantive S 30(1)(a) in so far as it limits the liability even where there has been a decree after the commencement of the Act becomes illusory. a 44. Then again we cannot altogether forget that the statute which we are interpreting mostly declines to yield anything without some violence to the language. 45. In my opinion, therefore, proviso (ii) to S. 36(1) itself would not protect the decree in question in the present rule from being affected by the exercise of the power under S. 36(1)(c). 46. The phrasing of the proviso no doubt is not absolutely clear but the reading of the proviso the other way will produce a casus omissus. It will produce a casus omissus in respect of decrees made on or after the first day of January, 1939 and before the commencement of the Act. In the case of an older decree the very wider remedies provided by the Act will be available; but for a decree made during this period only the ordinary remedy by way of review under Order 47, Civil Procedure Code, will remain open. Yet the entire scheme of the Act indicates a good deal of concern of the legislature for this period. If the language used by the legislature clearly produced this casus omissus we could not have mended it. But that is not the position here. 47. The decision of my learned brothers, Mukherjea and Blank JJ in Sailabala Dasi v. Haris Chandra Das (1942) 46 CWN 875 is greatly influenced by the consideration of this casus omissus. 48. Coming then to the first contention raised by Mr. Mukherjee, there is on doubt that the words "notwithstanding anything contained in any law for the time being in force" with which S. 36(1) opens are wide and comprehensive. Section 30 also opens with similar words. 48. Coming then to the first contention raised by Mr. Mukherjee, there is on doubt that the words "notwithstanding anything contained in any law for the time being in force" with which S. 36(1) opens are wide and comprehensive. Section 30 also opens with similar words. These words seem to be comprehensive enough to point to the consequence that the omission of a borrower to ask for the relief provided by Ss. 30 and 36 of the Act in a suit even after the commencement of the Act would not debar him from claiming the relief under S. 36(1) in spite of the decree to the contrary in that suit. 49. At the same time it will be a tremendous revolution if the legislature by this of phrasing of the section be taken as intending that the relief provided by it can be sought for by any number of proceedings initiated for the purpose in spite of repeated failures in obtaining the same. That construction which causes the least shock to the well settled principles has in its favour 'Fundatam intentionem'. 50. The interests of the State and of the parties require the controversies should be put an end to. One way of ending controversies is to preclude the bringing of an action after a period of time has elapsed. The policy against re litigation is even stronger. If the validity of a claim is established by a valid and final judgment, that claim could not again be litigated: Expedit reipublicate ut sit finie litium. 51. The object of the Bengal Money-Lenders Act, 1940 is expressed to be 'the control of money lenders' and 'the regulation and control of money lending'. It is not for us to look to the policy of the legislature in enacting the Statute. It might have become necessary to make provision for protecting people from the effects of their improvident contracts. The centre of gravity of any legal development really lies in society itself. If in a particular society the majority of the members are to depend on intermittent income and if they are yet ill prepared to adapt themselves to the inconveniences of any disturbance, of their income they may develop in themselves a tendency to sacrifice the future. The centre of gravity of any legal development really lies in society itself. If in a particular society the majority of the members are to depend on intermittent income and if they are yet ill prepared to adapt themselves to the inconveniences of any disturbance, of their income they may develop in themselves a tendency to sacrifice the future. Tea creditor class in such a state may take undue advantage of the psychological pressure of the present on such minds and this may necessitate protective measures by the legislature. Anything happening between the borrower and the lender may not thus be allowed to produce any irrevocable legal effect. But there is hardly any justification for allowing the solemn decision of courts to remain inconclusive for ever. This would mean abrogation of all well established principles by the general words used in the Statute. I believe this is not necessary even for the commendable purpose of achieving as effectively as possible the announced goal of the Statute. 52. In my opinion, comprehensive though the words apparently are, they do not exclude the operation of the law and principle of res judicata it is safe to assume that by these general words the litigation merely intended to give so much power as was necessary for carrying out the objects of the Act, and not to give any unnecessary even at the sacrifice of all other values worth protecting. 53. I thus feel inclined to accept the contention of Mr. Das in this respect. Only I would add that in so far as the relief provided by the Section is expressly made to affect a decree or a decision of a court, these opening words will prevent any law or principle of res judicata from affecting that power because of the existence of that decree or decision only. As has been pointed out above, the power given by the section is expressly made to extend in some cases even to the re-opening of decrees made after the commencement of this Act. Such express power should not, in my opinion, be nullified by the application of the law or principle of res judicata on the only ground of the existence of the very decree or decision expressly placed by the section within the ambit of the power. Such express power should not, in my opinion, be nullified by the application of the law or principle of res judicata on the only ground of the existence of the very decree or decision expressly placed by the section within the ambit of the power. This view of the effect of these wide opening words of the section is consistent with the views of the learned Judges of the Allahabad High Court who decided the case in Shri Nath v. Puran mal ILR (1942) All 45 (F B). There the provision in question expressly made the relief available after the decree and the learned Judges observed that the operation of the law of res judicata so as to affect this relief on the ground of there already having been a decree without this relief was prevented by the similar opening words in the then relevant section. 54. It thus appears that subject to the result of the first two contentions of Mr. Das, (1) the present suit must be held to be maintainable, and not liable to be defeated in limine on the ground of its trial being barred by reason of the decision in the original suit having become res judicata. (2) But in giving relief in the present suit under S. 36(1) of the Bengal Money-Lenders Act, 1940, the decree in the original suit can be re-opened only in so far as it imposes liability in excess of twice the principal of the original loan. No relief is available under clauses (b) and (c) of S. 30(1) because of the decree which was passed after the commencement of the Act. (a) Issues of fact that fall to be decided in determining this excess under S. 30(1)(a) are not saved from the operation of law and principle of res judicata. (b) If the relief in question was expressly disallowed in the original suit, that decision would operate as res judicata. (i) only what does not operate as res judicata is the decree as such without any decision on the question. 55. Before leaving the subject it may be pointed out that a suit brought by a borrower for relief under S 36(1) is not a suit to which the Act applies and consequently any decree in such a suit is clearly saved by proviso (ii) from being affected by anything done in exercise of the powers under S. 36(1). 55. Before leaving the subject it may be pointed out that a suit brought by a borrower for relief under S 36(1) is not a suit to which the Act applies and consequently any decree in such a suit is clearly saved by proviso (ii) from being affected by anything done in exercise of the powers under S. 36(1). Obviously therefore a second suit of this kid will be fruitless even if the opening words be taken as altogether excluding the law of res judicata. 56. Again a proceeding started by the review application under S. 36(6) (a)(ii) is not a suit to which this Act applies as such a proceeding is not for any of the purposes specified in clauses (a), (b) and (c) of S. 2(22) of the Act. A decree, if any, in such a proceeding therefore is a decree of a court other than a decree in a suit to which this Act applies, and cannot be affected by the powers under S 36(1) by reason of proviso (ii). If such a proceeding is finally decided against the borrower by a decree, that decree, in my opinion, cannot be affected by the exercise of the powers under S. 36(1) of the Act. Proviso (ii) of that section saves this decree from such interference. 57. But the question then will be whether the final decision in such a proceeding is a decree within the meaning of the proviso. This question however, has not been agitated in this case and I refrain from expressing any opinion on it. 58. Coming now to the remaining contentions raised by Mr. Das, I am of opinion that his first contention must be given effect to on the authorities relied on by him. The ex parte decree in question having been passed after the commencement of the Bengal Money-Lenders Act, 1940, it was erroneous on the face of it if it did not comply with the provisions of the Act. The borrower had recourse to one of the proceedings open to him under S. 36 of the Act, and there, rightly or wrongly, it was decided that the ex parte decree operated as res judicata, and that the decree in question was withdrawn from the field of operation of the powers under S 36(1) by its proviso (ii). The borrower had recourse to one of the proceedings open to him under S. 36 of the Act, and there, rightly or wrongly, it was decided that the ex parte decree operated as res judicata, and that the decree in question was withdrawn from the field of operation of the powers under S 36(1) by its proviso (ii). In my opinion this decision concludes the question now sought to be raised by the borrower as between the present parties. 59. As regards the second contention raised by Mr. Das, I refrain from expressing any opinion on it. I do not exactly see the principle which will produce this result. It is perhaps the projection of the doctrine of election to cases where there is a choice between alternative remedies. The doctrine might have some application to cases where there is a choice between alternative and inconsistent remedies, - whether the alternatives are mutually exclusive. It is to be seen how far it is possible to apply any such principle to the present case. The question before us is one not even of choice of remedies, but of choice of alternative modes of realization of the same relief or remedy.