JUDGMENT 1. On the 3rd December, 1920, the Petitioner borrowed Rs. 2,000 from the Madaripore Loan Office at an interest of 7 1/2 per cent, per annum with yearly rests, to be raised to 10 1/2 per cent, with yearly rests in case interest was not regularly paid. For securing the said loan he executed on the same day a mortgage bond by which he hypothecated five items of immovable property. The debtor paid in all Rs. 555 odd. For the balance of its dues the said Loan Office filed the suit in 1927. After a chequered progress the suit was finally decreed on the 8th February, 1936, when a final mortgage decree for Rs. 5,017 odd was passed. One Hemangini Debi had in the meantime obtained a money decree against the Madaripore Loan Office. She assigned her decree to one Jagat Chandra Singha (Opposite Party No. 2). To recover his dues under this decree from the Madaripore Loan Office Jagat Chandra attached the mortgage decree which the said Loan Office had obtained against the Petitioner under the provisions of Or. 21, r. 53 of the Code of Civil Procedure. As attaching creditor he carried on the execution of the said mortgage decree against the Petitioner and at the Court sale purchased four out of the five items of mortgaged properties at a price of Rs. 1,800 on the 30th June, 1938. The sale was confirmed and possession was taken on the 5th March, 1941, when the execution case was finally disposed of. On the 31st March, 1941. the Petitioner filed an application under sec. 36 of the Bengal Money-Lenders Act for re-opening the final mortgage decree passed against him in 1936 with a prayer for restoration to him of the possession of the four items of immovable property, which Jagat Chandra had purchased in the execution proceedings, which he had started as an attaching creditor of the Madaripore Loan Office, in case the said decree was re-opened. The Madaripore Loan Office took no interest in the proceedings so started, but Jagat Chandra opposed the said application. The learned Subordinate Judge dismissed the said application by his order dated the 9th September, 1941. On this Court being moved that order was set aside and the matter was remanded to the learned Subordinate Judge for reconsideration. The Madaripore Loan Office took no interest in the proceedings so started, but Jagat Chandra opposed the said application. The learned Subordinate Judge dismissed the said application by his order dated the 9th September, 1941. On this Court being moved that order was set aside and the matter was remanded to the learned Subordinate Judge for reconsideration. The learned Subordinate Judge has again dismissed the said application by his order dated the 18th November, 1942. He has given two reasons in support of his order, namely (1) that the application made under sec. 36 of the Bengal Money-Lenders Act was not maintainable, as on the date when it was made no suit or proceeding in connection with that loan was pending, and (2) because the "sale could not be set aside as the Madaripore Loan Office was a bond fide purchaser for value." There is obviously a slip here. He meant to say that Jagat Chandra Singha was the bond fide purchaser for value. Against this order the present Rule has been obtained. The judgment of the learned Subordinate Judge is rather sketchy and obscure. The matter therefore has to be examined by us on the facts which are admitted. 2. The learned Subordinate Judge's first reason is clearly untenable. The test is not whether any suit or proceeding in connection with the loan was pending at the date of such an application, but whether any suit or proceeding, which includes execution proceedings, were pending on the 1st January, 1939. If there was, the suit would be one to which the Bengal Money-Lenders Act would apply. In this case the proceeding for executing the mortgage decree which had been started in 1938 was pending on the 1st January, 1939, it having been finally disposed of on the 5th March, 1941. The mortgage decrees, both the preliminary and the final, are clearly in contravention of sec. 30 of the Act. The final mortgage decree was not fully satisfied on the 5th March, 1941, nor has it been satisfied yet, for the fifth property has not been sold. It can therefore be re-opened. The only other question is whether the Petitioner can be restored to possession on the re-opening of the mortgage decrees. That question depends upon the construction of sec. 36, sub-sec. (2), cl. (6) of the Act. It can therefore be re-opened. The only other question is whether the Petitioner can be restored to possession on the re-opening of the mortgage decrees. That question depends upon the construction of sec. 36, sub-sec. (2), cl. (6) of the Act. The learned Subordinate Judge has not made any attempt to construe that clause, but has simply observed that as Jagat Chandra was a bond fide purchaser for value, his rights cannot be affected. In our judgment the question really depends upon the question as to whether Jagat Chandra can be regarded as the "decree-holder" of the decree sought to be re-opened. For the purpose of this case cls. (b) and (c) of sub-sec. (2) of sec. 36 of the Act must be construed together, for one is only the counterpart of the other. The effect of those two clauses is that if the decree-holder of the re-opened decree is the purchaser, possession must be restored to the debtor. If any other person is the purchaser, possession cannot be restored to the debtor, provided that such a purchaser had purchased bond fide. In the case before us there can be no doubt that Jagat Chandra's purchase was bona fide. He purchased the properties at the Court sale before the Bengal Money-Lenders Act had been passed and there is nothing which would suggest that his purchase was not a bond fide one. The sole question therefore is whether he can be regarded as the " decree-holder" of the mortgage decree sought to be re-opened within the meaning of those two sub-sections, by reason of the fact that he was the attaching creditor of the Madaripore Loan Office and that he carried on the proceedings in execution of the mortgage decree, which the Madaripore Loan Office had obtained against the Petitioner. 3. The legal representative of the decree-holder of the re-opened decree would be regarded on general principles to be the decree-holder of that decree within the meaning of those two clauses. An assignee of that decree would also be regarded as the decree-holder, but the provisions of sec. 36 would not be applied against him, if he fulfils the requirements of sub-sec. 5 of that section. The attaching creditor of the decree-holder is not, however, the assignee of the decree [Radha Kissen Chamria v. Durga Prosad Chamria 45 C. W. N. 1 (P. C.) (1940)]. 36 would not be applied against him, if he fulfils the requirements of sub-sec. 5 of that section. The attaching creditor of the decree-holder is not, however, the assignee of the decree [Radha Kissen Chamria v. Durga Prosad Chamria 45 C. W. N. 1 (P. C.) (1940)]. He is not also the representative of the decree-holder in its full sense. His position has been defined precisely in the above-mentioned case. Sub-r. (3) of Or. 21, r. 53 of the CPC defines his position. He is to be "deemed to be "the representative of the decree-holder of the attached decree. The Right Hon'ble Mr. Jayakar, in construing that sub-rule, observed thus: The words 'deemed to be' suggests a legal fiction of a two-fold character with regard to the attaching decree-holder: (1) the law regards him as the representative of the holder of the attached decree, and (2) as a consequence of this fiction, the law clothes him with same rights as the decree-holder has to execute the decree against the original judgment-debtor. Two things are clear from this context, that he is a representative only (by a legal fiction, and that too for the purpose of lawfully executing the decree, i.e., enforcing it (by process of the Court and satisfying his own decree out of the proceeds of such execution..... As the analogy only arises by legal fiction it must be limited to purposes indicated by the context and cannot be given a larger effect. 4. In view of what has been laid down in the above passage we cannot hold that an attaching decree-holder is to be regarded as "the decree-holder of the re-opened decree." Any other view would lead to manifest injustice, for on the judgment-debtor paying all the installments according to terms of the new decree to his decree-holder, the decree against him would be satisfied. If his decree-holder had purchased the judgment-debtor's property in execution of the re-opened decree, there would be no prejudice, for the judgment-debtor gets his property back and the decree-holder gets back his money with such interest as the Bengal Money-Lenders Act permits. If his decree-holder had purchased the judgment-debtor's property in execution of the re-opened decree, there would be no prejudice, for the judgment-debtor gets his property back and the decree-holder gets back his money with such interest as the Bengal Money-Lenders Act permits. But if the attaching creditor of that decree-holder, who had purchased the properties of the judgment-debtor of the holder of the re-opened decree, were to give back possession to the said judgment-debtor, he would not get any satisfaction in respect of his decree by the judgment-debtor paying all the installments to his decree-holder in terms of the new decree. The attaching decree-holder who had so purchased would lose his money-what was due to him by the holder of the attached decree-and at the same time lose the property, which he had taken at the Court sale in satisfaction or part-satisfaction of his dues from the holder of the attached decree. 5. We accordingly hold that even if the mortgage decrees which the Madaripore Loan Company had obtained against the Petitioner be re-opened, the Petitioner cannot have the possession of the properties which Jagat Chandra had purchased at the Court sale, restored to him. As the learned Subordinate Judge has erred in holding that application under sec. 36 did not lie, we are constrained to remand the case again in order that both the preliminary and final mortgage decrees may be re-opened if desired by the Petitioner. If the amount that may be found to be legitimately due to the Madaripore Loan Office in view of the provisions of sec. 30 of the Bengal Money-Lenders Act does not exceed Rs. 1,800, at which the four mortgaged properties were purchased at the Court sale by Jagat Chandra, the Court would declare the decrees to have been satisfied. If, however, the sum so found be in excess of Rs. 1,800, the Court below would pass a new preliminary decree in terms of sec. 34 of the Bengal Money-Lenders Act directing payment of the said excess to the Madaripore Loan Office in such installments as it thinks fit. No restoration of the four properties purchased by Jagat Chandra is to be ordered in favour of the debtor, as we have decided that matter against the latter. We direct each party to bear their respective costs of this Rule.