JUDGMENT Ormond, J. - This matter came before the Court in the first place with an application made under sec. 38 of the Bengal Money-Lenders Act (Act X of 1940) on behalf of the borrower. It now comes before me (after certain other proceedings which I shall mention) on exceptions taken on motion on behalf of the lender against the report of the Registrar in a reference in which he was directed to take accounts. Certain facts and dates are as follows, about which there is no dispute: On the 22nd September, 1934, the borrower borrowed Rs. 3,000 from the lender agreeing to pay interest at 12 per cent. per annum for which he gave the lender a promissory On the 28th December, 1934, the borrower borrowed a second sum of Rs. 3,000 from the lender similarly at 12 per cent, per annum agreed interest, for which he gave him a second promissory note. By the 26th February, 1937, the borrower had paid interest at 12 per cent, per annum on both promissory notes up to date, and he had also paid Rs. 1,900 towards the repayment of the principal amount of the first promissory note. On that date the borrower borrowed a further sum of Rs. 5,000 pa to him by cheque to the extent of Rs. and in cash to the extent of Rs. 210. This with the sum of Rs. 4,100, which was cindered to be then outstanding as the balance of principal still due on the two promissory notes, was treated as a consolidated sum of Rs. 10,000, for which as security instead of the promissory notes the borrower then gave the lender a mortgage, in which the interest was expressed to be payable at 9 per cent. per annum until realisation. In 1940, while the mortgage was still not paid off, the Bengal Money-Lenders Act came into force. By this Act, as is well known, interest recoverable on loans other than those excepted from the Act under sec. 2 (12) was scaled down by statutory effect to 10 per cent. simple interest on unsecured loans and 8 per cent, simple interest on secured loans. The loans in this case were amongst those for which interest was scaled down under the Act. The borrower therefore found that he was not liable to pay interest at the agreed rate but only at the lesser scaled down rates. simple interest on unsecured loans and 8 per cent, simple interest on secured loans. The loans in this case were amongst those for which interest was scaled down under the Act. The borrower therefore found that he was not liable to pay interest at the agreed rate but only at the lesser scaled down rates. On the 28th February, 1941, he accordingly made an application under sec. 38 of the Bengal Money-Lenders Act to obtain the benefit of the scaled down rates. It is on that application that the present proceedings are now taking place. 2. In this application he asks for the following reliefs: (a) that an account should be taken of the loan having regard to the provisions of Chs. IV, VI and VII of the Bengal Moneylenders Act. (b) Declaration of the amount so found due (c) Further orders or directions. 3. On the 3rd April, 1941, (over three years now ago) the application was heard by Panckridge, J. It may be noted that as the matter then came before his Lordship, the principal point in issue was this:- "Had the borrower's liability under the promissory notes merged in the mortgage debt or not." The lender argued that it had, the borrower that it had not; and that he was therefore entitled to get credit for the amounts overpaid by him when taking the difference between the payments of interest made by him at the agreed rates and the amount of interest payable by him on the sesied-down rates. He urged that he should be permitted to re-open the question of interest payable on the promissory notes. He also of course urged his right (about which there could have been no question) to have his liability for interest since the mortgage also scaled down from 9 per cent, to 8 per cent, simple interest. 4. Panckridge, J., decided that not only should the question of the amount of interest payable on the mortgage be re-opened but also thought that on the promissory notes. 4. Panckridge, J., decided that not only should the question of the amount of interest payable on the mortgage be re-opened but also thought that on the promissory notes. As the amount of balance of the principal outstanding on the promissory notes at the date of the execution of the mortgage, had been taken as an element of the principal sum for which the mortgage had been made out, the allowance of credit for over-payment of interest on the promissory notes also had the effect of re-opening the question of the correct sum properly to be taken as principal payable under the mortgage. That this is how the matter came up before him is clear from the judgment pronounced by Panckridge, J., on that occasion, and dated the 3rd April, 1941. 5. His Lordship accordingly directed the Registrar to take an account in respect of the mortgage; and directed that in taking the said account the interest on the mortgage should be calculated at the rate of 8 per cent, per annum (simple) and that on the two promissory notes executed prior to the date of the said mortgage at the rate of 10 per cent, per annum (simple); and directed him to report the same to this Court. The precise terms appear from the order dated 3rd April, 1941. 6. For close on three years neither party appears to have taken any steps to ensure that the reference came to an effective hearing. But on the 12th January, 1944, the reference came into the Special List; and on the 21st March, 1944, it was heard by the Registrar. The matter was at the hearing of the reference argued by Counsel on both sides. Then, owing no doubt to the substantial period that had elapsed since Panckridge, J.'s order and the consequent substantial amount of interest involved since then, the question arose whether the Registrar was entitled to allow later interest subsequent to the date of the order of Panckridge, J., or not. The Registrar in his report came in effect to the following findings: 1. That the sum of Rs. 4,989-6 was due to the lender. This figure was agreed between the parties as correct. 2. That the lender was not entitled to interest as claimed by him at 8 per cent, after the 4th April, 1941. 3. The Registrar in his report came in effect to the following findings: 1. That the sum of Rs. 4,989-6 was due to the lender. This figure was agreed between the parties as correct. 2. That the lender was not entitled to interest as claimed by him at 8 per cent, after the 4th April, 1941. 3. That such interest if allowed to the lender would have amounted to Rs. 1,067-6 over the period from the 4th April, 1941, up till 15th March, 1944, (approximately the date of the hearing of the Reference). 7. His reasons for finding that interest after the 4th April, 1941, was barred appear when analysed to have been: (a) This was barred under sec. 31 of the Bengal Money-Lenders Act. (b) That the material date was the date of the order of Panckridge, J., of 3rd April, 1941, and that interest after that date ceased to run as under a decree. (c) That he was bound to follow the judgment of Das, J., in an unreported case Nimai Charan Sen v. Ramkewal Shah (1) as applicable to the present case. (d) That any other construction of the Act would be unreasonable. 8. It is against those findings that the present exceptions have been taken on behalf of the lender. 9. In this petition the lender prayed that the report of the Registrar be varied: the variations desired by him being that he should be allowed the additional sum of Rs. 1,067-6-0 for interest from the date of Panckridge, J.'s judgment up till the date of the hearing of the reference, and, secondly, further interest up to date of payment. 10. There are two features of the Bengal Money-Lenders Act having a bearing on the present case which require to be specially noticed. 11. One is the manner in which the Bengal Money-Lenders Act scales down or cuts out interest which was otherwise recoverable if the Act had not been made law; its operating in this respect are as follows: (1) It scales down interest under sec. 30 (1) (c). (2) It makes this provision retrospective [sec. 30 (2)]. (3) It limits the total aggregate amount of interest payable to an amount regulated by a rule corresponding to the rule of Damdupat under sec. 31 (a) and sec. 31 (b). 12. 30 (1) (c). (2) It makes this provision retrospective [sec. 30 (2)]. (3) It limits the total aggregate amount of interest payable to an amount regulated by a rule corresponding to the rule of Damdupat under sec. 31 (a) and sec. 31 (b). 12. It is to be noted that all these three reliefs to borrowers are given a very wide universal effect by the words "No borrower shall be liable to pay after the commencement of this Act...." So there can be no question that the Court would be bound to give the borrower the benefit of all the reliefs enacted in the above sub-sees. 30 Since reported in 48 C.W.N. 736 (1944) and (2) if it were taking his account on an application by a borrower under sec. 38. There is no dispute at all in the present case as to the operation of those reliefs in sec. 30. In fact the borrower has been given the benefit of these in the present proceedings so far as they apply. 13. Then there is a further relief given to a borrower in regard to the matter of interest under the next separate section and in terms very differently worded. 14. The loans in this case were all pre-Act loans. Accordingly we can ignore for present purposes sec. 31 (b). 15. Under sec. 31 (a) the borrower is, on a pre-Act loan, given, in addition to the three reliefs already mentioned, a fourth relief in relation to interest as follows: Notwithstanding anything contained in any law for the time being in force, no Court shall, in any decree passed in any suit to which this Act applies, if the loan to which the decree relates was advanced before the commencement of this Act, allow any interest on the decrial amount. 16. It is to be emphasised, however, that this fourth relief is not given to the borrower in the same wide universal terms as the first three reliefs but only in the following circumstances: (a) In any decree passed by a Court. (b) In any suit to which this Act applies. [By the definition in sec. 2 (22) the effect of this is made to be that the bar will operate in suits instituted on or after 1st January, 1939]. I shall return to these two limitations of the relief later. 17. (b) In any suit to which this Act applies. [By the definition in sec. 2 (22) the effect of this is made to be that the bar will operate in suits instituted on or after 1st January, 1939]. I shall return to these two limitations of the relief later. 17. There is a fifth relief to the borrower by way of cessation of interest under sec. 39 (3), where there are special proceedings under sec 38 and he has made a deposit. I shall refer to this also more fully later. 18. The second of the two features of the Bengal Money-Lenders Act requiring to be specially noticed is the way a particular form of a new legal proceeding is introduced in sec. 38. While the Bengal Money-Lenders Act does not take away from a borrower-mortgagor his right to institute a suit for redemption, it gives him a special cheaper form of proceeding which he can start by way of an application under sec. 38 No doubt this was introduced as a relief to borrowers. The complications, delay and expense of ordinary litigation by way of a suit for redemption no doubt often prevented poor and uneducated borrowers from being able to ascertain the exact extent their liability and pay it off even if they wanted to. This was no doubt intended to afford the borrower a simple, quick and easy way of doing so. 19. It is to be emphasised also that this special proceeding is also open under the Act for the benefit of a borrower in a case where there is no mortgage but a mere simple money loan. Such a borrower (not a mortgagor) would in the ordinary case have no right of filing any comparable suit against the lender on a simple money loan, and in the case of an ignorant person might well have found himself in some difficulty in ascertaining the extent of his liability and obtaining an effective legal discharge of his debt. 20. These matters are mentioned merely to emphasize the new nature of the special proceeding introduced under sec. 38. 21. Other points in regard to this special proceeding may be noted as follows: I mention here only points which are clear-cut and clearly laid down by the Act without room for controversy. (a) The proceeding does not start with a plaint but with an application. 38. 21. Other points in regard to this special proceeding may be noted as follows: I mention here only points which are clear-cut and clearly laid down by the Act without room for controversy. (a) The proceeding does not start with a plaint but with an application. (b) No court-fee as for a plaint or suit has to be paid but only a fee of Re. 1. (c) After obtaining the declaration as to the account it is a matter of choice left to the free will of the borrower whether he will make payment in full, in part, or not at all. (d)The lender may on petition, verified as for a plaint, stating his willingness to accept the money, take the money out of Court, if a deposit has been made. (e) The lender is given no rights or powers anywhere in the Act of enforcing either any payment or any further action on the part of the borrower. (f) On the other hand, rights of recovery (from the money deposited or otherwise) of damages and costs through the Court are accorded to the borrower in the event of unreasonable refusal by the lender to accept payment. (g) The borrower may apply to Court to deposit the sum declared payable. If the borrower should choose to make a deposit under sec. 38 where this is in payment of the principal or any part thereof, he is given the statutory relief that all further liability to pay interest on such principal or part covered by the deposit shall cease. The actual date of cessation is from the date of service of the notice on the lender which the Court is bound to serve under sec. 39 (a). (h) Regarding procedure in taking accounts under this section the Court is to follow the same procedure as it does in regard to civil suits. (i) The proceedings shall be deemed to be a suit for the purposes of sec. 11 of the Code of Civil Procedure, 1908. (j) A declaration under this section shall be subject to appeal, if any, as if it were a decree of the Court. (k)Every decision in appeal shall be subject to appeal to the High Court in the same manner as a decree passed in appeal. 11 of the Code of Civil Procedure, 1908. (j) A declaration under this section shall be subject to appeal, if any, as if it were a decree of the Court. (k)Every decision in appeal shall be subject to appeal to the High Court in the same manner as a decree passed in appeal. (l) Regarding the law to be enforced the provisions of Chapters IV, VI and VII are to be followed " as far as may be." (m) The proceeding ends (subject to the subsidiary remedies referred to in sec. 39) with a declaration made by the Court taking the accounts [sec. 38 (2)]. 22. The substantial point for decision here arises in this way: It will be seen that sec. 31 in such proceedings to which it applies has the effect of making open to a borrower a special particular statutory relief as to his labiility to pay interest. The form of this relief is to make it illegal for a Court to allow to the lender any interest of a particular type described as "interest on decretal amount." I am not now concerned with precisely what type of interest is covered by the expression "interest on decretal amount." That depends on the vexed question of the meaning of that phrase. Whatever type of interest is covered by that phrase is made illegal for allowance to a lender by Court in the class of proceedings to which sec. 31 is intended to apply. 23. Sec. 38 read with sec. 39 provides for the special type of proceeding started by an application by the borrower for the taking of accounts by the Court and ending in a declaration by the Court, as already discussed above. 24. Are these special proceedings under sec. 38 within the class to which sec. 31 is intended to apply? That is to say, so as to make the allowance by a Court to a lender of interest on decretal amount, when taking accounts on an application under sec. 38 of a borrower, illegal-that is to say, so as to afford to the borrower in an application under sec. 38 the particular statutory relief afforded by sec. 31-or not? The decision on the matter at issue in the present case turns in the end on the conclusion I shall come to on that question. 25. 38 of a borrower, illegal-that is to say, so as to afford to the borrower in an application under sec. 38 the particular statutory relief afforded by sec. 31-or not? The decision on the matter at issue in the present case turns in the end on the conclusion I shall come to on that question. 25. The matter has been ably argued before me by Counsel, Mr. Sankar Banerjee appearing on this motion for the applicant, the lender, and Mr. A. C. Sircar for the Respondent, the borrower; who also represented the lender and borrower respectively before the Registrar. 26. The matter as it now comes before the Court involves certain new points as to the construction of the Bengal Money-Lenders Act and as to the scope of sec. 38, which, so far as I know, have not previously come up for decision. It is for this reason that I am going into the matter in some detail. 27. In considering how far sec. 31 governs orders in the present proceeding under sec 38 the course I propose to adopt is to consider the matter as three main separate questions. 28. The first question I will consider is, in general, how far sec. 31 in terms directly applies to proceedings such as these. The second question will be (so far as this may need any separate consideration) whether sec. 31 in terms directly applies to the particular order made by Panckridge, J., on 3rd April, 1941. This calls for separate consideration since the Registrar in his report made interest cease as from the date of that particular order. The third question which I will lastly consider is whether apart from the express terms of sec. 31 there is any extraneous reason on any general grounds of construction of the Bengal Money-Lenders Act or any over-riding general principle of law which would make it proper or necessary for a Court to disallow interest on the lines of sec. 31 to a lender when taking the borrower's account under sec. 38. This would have to be both in relation to any order disposing of the application and to the particular order already made on 3rd April, 1941. 29. There are various aspects affecting the application or non-application directly of sec. 31. 30. Is any order of this Court disposing of an application for accounts in the special proceeding under sec. 38. This would have to be both in relation to any order disposing of the application and to the particular order already made on 3rd April, 1941. 29. There are various aspects affecting the application or non-application directly of sec. 31. 30. Is any order of this Court disposing of an application for accounts in the special proceeding under sec. 38 a decree? 31. If the order made by a Court under sec. 38 is not a decree, then clearly sec. 31 has no application. 32. As to this there is, first of all, the definition of a "decree" in sec. 2 (2) of the Civil Procedure Code. It will be noted that the body of the definition includes reference to the matters in controversy in the, suit. The two questions are linked; and if this is not a suit, then it is hardly possible that the order is intended to be a decree. 33. Then there is the wording of sec. 38 (3) "as if it were a decree," and again "in the same manner as a decree." This in my view, if there are not other over-riding consideration, clearly points to the declaration in the section referred to not being a decree. 34. Then there is one possible argument arising from the importation of sec. 11, C.P. Code by the terms of sec. 38 (3). As to this it may be said if the proceeding is to be a suit for purposes of sec. 11, C.P.C that is to say, for res judicata, the effect of a decision of a suit will be an order, the effect of which will be to stop any other suit such as a mortgage suit being filed. It might be suggested if an order is going to have that effect, it can only be a decree. But the fallacy of this I think is that the principle of res judicata under sec. 11 can operate equally effectively to bar retrial some issues as to bar retrial of the whole suit or of all the issues possible to be raised in the suit. This leads I think only to the opposite conclusion and shows that there can be no intention of the order being a decree or being capable of execution. 35. 11 can operate equally effectively to bar retrial some issues as to bar retrial of the whole suit or of all the issues possible to be raised in the suit. This leads I think only to the opposite conclusion and shows that there can be no intention of the order being a decree or being capable of execution. 35. In my view in the special proceeding for accounts it will ordinarily happen that there will only be raised certain issues of limited scope mostly of fact affecting the amounts and figures of the account. It will then be these limited issues only which will be barred from being retried in a fresh suit. To take a particular illustration, the order which was made by this Court in the present proceedings will be confined to finding the amount due at to-day's date. That will be no bar to the mortgagee filing a mortgage suit for sale; only the mortgagee will be debarred in such suit of his from re-agitating any question of the amount of the debt due as at to-day's date. Nor would it, I take it, be a bar to the mortgagor filing a suit for redemption of the mortgage, he had any special reason to proceed by suit. 36. It is possible that recourse should only be had by a mortgagor to this special proceeding for accounts under sec. 38 in cases where it is not intended to take later any further defences not then taken. In this way he will at least be safe from a controversy and all chance of risk of being shut out at a later date from getting his defence of law heard in some later suit on the ground of its being res judicata. 37. It is true that there is some vagueness in the Act as to what issues of law and to what extent these may be agitated in this proceeding for accounts. Possibly this will come up to be settled in future decisions; or possibly rectified by the legislature. 38. 37. It is true that there is some vagueness in the Act as to what issues of law and to what extent these may be agitated in this proceeding for accounts. Possibly this will come up to be settled in future decisions; or possibly rectified by the legislature. 38. However, this does not substantially, in my opinion, affect the main point that if these special proceedings and the order in them had been intended to be clothed with all the attributes of a suit and of a decree, it would certainly have been necessary for the legislature to say so expressly; and not merely to leave this effect to be brought in by the back-door by reference only to a matter of res judicata. 39. In the only reported case of this High Court that has been brought to my notice concerning an application under sec. 38, where the application of Chapter VI as a whole to proceedings under sec. 38 was to some extent considered, it was in effect tacitly assumed that sec. 31 would not apply, though other sections of that Chapter would apply. Reference may be made to Birbhadra Chandra Chaudhuri v. Surendra Prosad Lahiri Chaudhuri 48 C.W.N.495 (1944) (the judgment of Mitter and Akram, JJ., at p. 498 in the right hand column). 40. For the above reasons I therefore hold that neither my order which I propose to make to-day nor any order which may be made by way of declaration otherwise disposing of the borrower's application for accounts in the special proceeding under sec. 38 is a decree. 41. Is such special proceeding "a suit to which the Act applies"? 42. It will be equally seen that if it is not a suit to which the Act applies, again for this reason alone sec. 31 will not apply to proceedings under sec. 38. This phrase is, of course, primarily intended to refer to suits outside the Act, but it would no doubt include the special proceedings had under sec. 38 if the words were to attract such special proceeding. 43. Firstly, there is clear authority that with certain exceptions, such as certain proceedings in probate proceedings, a proceeding which is not instituted by a plaint is not a suit. I would refer to the Full Bench decision in N.K.R. Rajagopala Chettiar v. Hindu Religious Endowments Board, Madras ILR 57 Mad. 43. Firstly, there is clear authority that with certain exceptions, such as certain proceedings in probate proceedings, a proceeding which is not instituted by a plaint is not a suit. I would refer to the Full Bench decision in N.K.R. Rajagopala Chettiar v. Hindu Religious Endowments Board, Madras ILR 57 Mad. 272 at p: 278 (1933). 44. Then there is to be considered the effect of the wording "deemed to be" in sec. 38 (5). There is authority, if needed, for the meaning of the words "deemed to be ": to the effect that the only meaning possible is "whereas he (or it) is not in reality that something, the Act of Parliament requires him (or it) to be treated as if he (or it) were." [income tax Commissioner of Bombay v. Bombay Trust Corporation, Ltd. L.R. 57 IndAp 49 at p. 55: s.c 34 C.W N. 203 (1929)]. 45. Then it will be found that the expression "suit to which this Act applies" has been defined in sec. 2 (22). The grammar of that sub-section or the arrangement of its words is not of the best. It seems clear that the words "and includes a proceeding in execution" should come at the end of the whole sub-section, for the suits described in sub-sees, (a), (6) and (c) are not proceedings in execution at all. If it is read as it stands, it does not make sense. I have been informed that this very question came up in an unreported case before Sen, J., and that he came to the same conclusion but I have not as yet been able to obtain the case to refer to. 46. Reading the sub-section as so re-arranged, the only part of it under which an application for accounts under sec. 38 could by any stretch of language ever be said to fall would be sub-para, (c) with reference to suits for redemption. But the interesting point to be noted again is that the special proceedings could not fall under sub-sec. 22 (c) where there was no mortgage. Though an application is intended to be able to be made under sec. 38 in case of a simple unsecured money loan, there can be no redemption suit in such case as there would be no mortgage to redeem. 47. 22 (c) where there was no mortgage. Though an application is intended to be able to be made under sec. 38 in case of a simple unsecured money loan, there can be no redemption suit in such case as there would be no mortgage to redeem. 47. Apart from this it is hardly conceivable, if the legislature had intended that an application under sec. 38 should have effect as a mortgage suit for redemption, that they should not have expressly said so. It is to be noted further that the details of procedure given in sec. 38 as to deposit and payment are not consistent in some respects with the procedure which would be followed in a redemption suit. 48. It seems unnecessary to say more to show that an application under sec. 38 cannot be said to be a "suit to which this Act applies." 49. In the light of what has been said earlier in this judgment as to the broad nature of the special proceedings for an account under sec. 38, it is in my view abundantly clear that the taking of account allowed for in sec. 38 is not intended to be a proceeding in any way affecting in itself the legal rights of the parties, nor creating in favour of a successful party to the proceeding any such legal rights as are acquired by a decree-holder in a suit. 50. I mentioned earlier the two limitations to the relief from liability of interest afforded in sec. 31 to the borrower, that is, that it was only where there was a decree involved, and only where there was a " suit to which this Act applies " involved. Coming as I do to the conclusion that there is no decree in the special proceeding under sec. 38 and no " suit to which the Act applies," I hold that sec. 31 is not in terms by any direct provision applicable to, nor has it any bearing on, the special proceedings for an account under sec. 38, such as the present proceedings. 51. Before leaving this part of the case I had better say a word about the particular order of Panckridge, J., of 3rd April, 1941. Having already held that sec. 31 does not at all apply to proceedings under sec. 38, such as the present proceedings. 51. Before leaving this part of the case I had better say a word about the particular order of Panckridge, J., of 3rd April, 1941. Having already held that sec. 31 does not at all apply to proceedings under sec. 38 it follows that it cannot apply to an intermediate order made in the course of these proceedings such as the order of Panckridge, J., of 3rd April, 1941. 52. I wish to record here, however, my opinion that even if it were held on a different view that sec. 31 did apply to the later order eventually disposing of the main application (such as the order I shall now be making at to-day's date), this could only be on the ground that the later order was a decree. Even on that basis I do not consider that the order of Panckridge, J., of 3rd April, 1941, could or should properly be treated itself as a decree. It being a mere interlocutory or other direction for the Registrar to do some arithmetic as a ministerial act for the convenience of the Court, to avoid the delay necessitated by detailed work involved in taking the account in Court (as might be done in a Court outside Calcutta). I do not consider that that order was in fact in any sense a decree at all, nor that it was a decree or order in the nature of any preliminary decree in a mortgage suit. I may say that this proposition was not contested before me on, the hearing of this motion. 53. It would follow from this ruling on this part of the case that interest in the present case at least ought not to stop on the date of the order of Panckridge, J., of 3rd April, 1941; and that this is irrespective of whether or not it is held that interest should stop on the date of any main order. I think it advisable to record this definite ruling on this point since this in itself would involve a variation of the Registrar's report to this extent, and there is a substantial sum of money concerned as interest between the date of Panckridge, J.'s order of 3rd April, 1941, and to-day's date. 54. I next come to the question whether there can be any indirect application of sec. 31 to sec. 38. 55. 54. I next come to the question whether there can be any indirect application of sec. 31 to sec. 38. 55. The broad position must be emphasised. Sec. 31 gives to a borrower a new statutory relief. If the section does not apply, then the previously existing provisions of the Contract Act and of the Code of Civil Procedure, sec. 34, and in the case of mortgage suits Or. 34, r. 11 (a) and (a), read with Or. 34, r. 2, giving the Court a power in its discretion to allow interest to the mortgagee-lender, continue to apply. These existing statutory provisions cannot be taken away or nullified only on little more than some vague instinct of what the intention of the framers of the Bengal Money Lender Act might have been meant to be. The can only be varied by express statutory enactment. It follows, therefore, that if there is no direct and express provision sec. 31 or elsewhere in the Bengal Money Lenders Act it the effect that these provisions of the Contract Act and the CPC are varied, there will be no variation. The Contract Act and the CPC will stand. 56. There is also a clear principle of law that where there is a public or private right or a certain jurisdiction in a Court, these cannot be taken away by mere implication but need a clear and express provision in a statute to take them away. The existing statutory law has granted a jurisdiction to the Courts and a right to lenders for allowance of interest as specified in the Code. Whether this is looked on as a private or a public right or as a matter affecting the jurisdiction of the Courts, it cannot be taken away as it were by a side wind. For authority where this aspect is considered see Craies on Statute Law, 4th Edition, Chap. 3, at p. 197, Art. 2, and at pp. 111 and 114, and the authorities cited there. It may be doubtful whether the Registrar gave due weight to this aspect of the matter, since one of the grounds expressed in his report would appear to show that he has gone to some extent on an assumption of an implication read from the general tenor of the Act. 57. 111 and 114, and the authorities cited there. It may be doubtful whether the Registrar gave due weight to this aspect of the matter, since one of the grounds expressed in his report would appear to show that he has gone to some extent on an assumption of an implication read from the general tenor of the Act. 57. Finally, it is important to refer to a particular provision in the Act itself governing the running of interest which is expressly concerned with these very proceedings with which we are now concerned, that is proceedings under sec. 38. This provision is contained in sec. 39 (5) and provides that on deposit, if such sum deposited is in payment of the principal or any part thereof, the interest on such principal or part shall cease from the date of the service of the notice on the lender under sub-sec. (2). This is inconsistent with the applicability of sec. 31; but entirely consistent with the non-applicability of sec. 31, and then perfectly natural. For if sec. 31 were to apply to the special proceedings, then interest will already have been made to cease under it at the date of the declaration in the special proceedings. In that case it is senseless to have a further and inconsistent provision in sec. 39 (5) for it to cease at a later event after the declaration. If sec. 31 does not apply, then the lender's right to interest would ordinarily run on under the contract till realisation. But to give the borrower this further relief, it is then provided by sec. 39 (5) that interest was cease at an earlier date (that is at the date of service of the notice) in a case of special proceedings under sec. 38 and where he has made a deposit. But interest is not to stop after a mere declaration or order is made. By expressly providing that interest is to cease only on the principal or part for which payment has been made or of which a deposit is made, it obviously contemplates interest going on running according to the ordinary unaltered law as to the remainder. This direct provision in sec. 39 (3) in itself, is in my view conclusive, so far as the present case is concerned. 58. This direct provision in sec. 39 (3) in itself, is in my view conclusive, so far as the present case is concerned. 58. The result, therefore, in my view, is that even subsequent to the date of the declaration I am about to make on this application under sec. 38 the mortgagee-lender will continue to be entitled to have interest running on his mortgage debt; certainly also, in my view, the liability of the mortgagor-borrower for payment of interest did not cease on 3rd April, 1941, the date of the order of Panckridge, J., as was taken to be the position in the report of the Registrar. In my view neither the mere finding of the application under sec. 38 nor any order passed by the Court on the application is intended to have the effect of stopping interest running exactly as it was running previously to the making of the application. 59. One subsidiary point I should mention. It should be understood that any declaration of mine to the effect that interest is at present continuing to run should not be taken as deciding any point regarding the period up to which interest should continue to run, or the date after which it should cease, in the event of the mortgagee filing any mortgage suit. The filing or passing of a decree in a mortgage suit might alter the rights between the parties as to the continuance of the running of interest. There might, on a decree being passed in a mortgage suit, be an alteration in the legal position of the parties in a manner and to an extent which does not at all occur on the mere taking of accounts. 60. It is true that since the enactment of the Bengal Money-Lenders Act there have been conflicting decisions of this Court as to the amount of interest recoverable, or rather as to interest recoverable subsequent to decree, where a mortgagee files a mortgage suit and obtains a preliminary decree. In such cases there being in existence a mortgage suit, in which the lender has obtained a preliminary mortgage decree, there can be no question but that sec. 31 is directly attracted by its own terms. As explained. In such cases there being in existence a mortgage suit, in which the lender has obtained a preliminary mortgage decree, there can be no question but that sec. 31 is directly attracted by its own terms. As explained. I consider that the rights of the party as to interest are clearly radically different where, as here, there is a mere application for an account under the special proceeding under sec. 38 on the one hand, and in such cases where the lender has got a mortgage decree which he can execute on the other. I have held that sec. 31 is not here applicable. I do not, therefore, need at all to consider the effect of sec. 31 or the meaning of the phrase "interest on decretal amount," or the conflicting rulings on that vexed question in the various judgments that have been delivered in this Court, such as either that by Das, J., in Nemai Charan Sen v. Ramkewal Shah Since reported 48 C.W.N. p. 736 (1944) in the at present unreported case (Suit No. 145 of 1943), which is the case the Registrar has relied on, (I understand that case has now since been followed in certain other cases), or by Rau and Biswas, JJ., in Atul Krishna Das v. Amritalal Chakravarti 47 C.W.N. 466 (1943), which has been followed in two other cases by MacNair, J. and Gentle, J. I am thus saved in the present case from having to choose between those differing rulings of this Court in that difficult but interesting matter. 61. The proper order which I think in these circumstances I should make will be this:- To allow the Petitioner, the lender, his application for exceptions varying the Registrar's report to the extent of directing the Registrar to include in his account as a sum due to the lender the sum of Rs. 1,067-6-0 as interest calculated between 4th April, 1941, up to 15th March, 1944, (which was not allowed by him to the lender), together with further interest to be calculated by him up to to-day. Since further interest from to-day is also further accruing, he should state for the future reference of the parties the sum to which interest at the present rate, on the circumstances as they exist to-day, is accruing either per day or per month as convenient to him. 62. Since further interest from to-day is also further accruing, he should state for the future reference of the parties the sum to which interest at the present rate, on the circumstances as they exist to-day, is accruing either per day or per month as convenient to him. 62. The declaration when it comes to be drawn up may be in the following form: A declaration that the following amount is payable and already due: (a) The sum of Rs.(sic), (which is fixed), reported as due by the Registrar up to 3rd April, 1941, plus such further interest (to be calculated) on the mortgage debt at 8 per cent., per annum simple interest from 3rd April, 1941, up till to-day (b) The following amounts are payable but not yet due: For principal.... Nil. For further future interest-None is now due. But such interest is continuing to accrue in the circumstances as at present exist at the present rate of 8 per cent, simple interest per month amounting to a sum of Rs.(sic)per month. Such interest will continue to accrue on the balance, if air of principal outstanding until payment, deposit and notice within sec. 39, or until the right thereto or to any part thereof is duly and legally extinguished either after the filing of a mortgage suit by the mortgagee in which he shall obtain a mortgage decree (in which case this will be on such terms and on such date or dates as the Court disposing of any such suit may duly decree) or otherwise by due operation of law. (c) Such further future interest will, however, be subject to the rule of law corresponding to the rule of Damdupat as laid down in sec. 31 (a) and (b) of the Bengal Money-Lenders Act. Such interest will cease in any event when it reaches a sum greater than the amount there allowed. The applicant will have the costs of and incidental to this motion, including the costs of the reference and reserved costs therein, if any. A certificate for Counsel is granted in relation to the hearing before the Registrar.