JUDGMENT Ormond, J. - This is an application under the Bengal Money-Lenders Act for re-opening the decree passed in this suit. The original loan in the suit was made by Radhashiam Shah and Monmatha Nath Banerji, who were then the executors of a certain deceased person of the name of Rakhal. The money was lent to the present Defendant. The executors having completed administration of the estate, it appears that an order was made appointing Radhashiam, son of the deceased Rakhal, as sole trustee on behalf of his father's estate. Subsequently, in place of Radhashiam, Radhashiam's wife, one Radharani was appointed sole trustee and is now sole trustee at the present day. The money borrowed was borrowed, according to the Defendant's case, in 1920. The total sums lent amounted to Rs. 5,600 principal. The original agreement as to interest was that interest should be paid at 1 anna per Rs. 100 per day, which amounts approximately to 22 per cent, per annum. 2. In 1926, the parties having taken accounts, a settlement was arrived at on the 6th June, 1926, which is set out in a hatchita, of which a copy is annexed to the plaint, and gives the amount then as settled on adjustment as Rs. 10,528. In this same settlement, recorded in the hatchita, it is expressly mentioned that interest on this sum of Rs. 10,528 as settled, should thereafter run at the same rate of 1 anna per Rs. 100 per day, that is, at 22 per cent. per annum. 3. There was a preliminary mortgage decree passed on the 25th June, 1931. Thereafter, during the course of accounts being taken before the Registrar, on the 18th January, 1932, the Registrar found a sum of Rs. 12,819 as due for principal. That figure arrived at by the Registrar was presumably passed on the settlement of the 6th June, 1926, and taking interest subsequent to the 6th June, 1926, at the rate mentioned at 22 per cent., giving credit for certain sums which have been paid since 1926. 4. It is clear also of course that the settlement itself, as arrived at in 1926, was based on the calculation of liabilities taken at the 22 per cent. originally agreed for interest on the original loan. 5. There was a final decree passed on the 13th February, 1934. 6. On the 12th December, 1932 a sum of Rs. 4. It is clear also of course that the settlement itself, as arrived at in 1926, was based on the calculation of liabilities taken at the 22 per cent. originally agreed for interest on the original loan. 5. There was a final decree passed on the 13th February, 1934. 6. On the 12th December, 1932 a sum of Rs. 4,000 is said to have been paid by the present applicant, and on the 13th April, 1934, a further sum of Rs. 500 was paid by him. These payments are as stated by the applicant, but I am informed that they are not admitted on behalf of the Plaintiff. 7. On the 13th February, 1935, the reference for sale before the Registrar was struck out for non-appearance of parties. 8. Then on the 2nd April, 1937, by an agreement in writing between Monmatha Nath Banerji, then the sole executor, and the Petitioner, Monmatha Nath Banerji agreed to accept Rs. 10,000 in full settlement, and it is common case that Rs. 5,500 was paid towards that settlement of Rs. 10.000, making, with the Rs. 4,000 and the Rs. 500 previously alleged, the total of Rs. 10,000. 9. I should have mentioned that the execution proceedings in the suit were started by an application for execution on the 28th June 1934. 10. On the 2nd February, 1944, the execution proceedings, which had at that time lapsed, as I have mentioned, by reason of the reference for sale having been struck out for non-appearance of parties, were revived on an application on behalf of Radharani, the lady whom I have mentioned and who applied for substitution of her name as Plaintiff in the suit, and on the 10th March, 1944, an order was made restoring the reference for sale. The actual motion in the present application, which is an application made in the execution proceedings, was made on the 5th May, 1944. 11. Those being the dates, certain somewhat difficult and complicated questions as to the construction of the Bengal Money-Lenders Act arise. I should normally have liked to have taken a little time till tomorrow in order to put this judgment into proper arrangement, but in view of the pressure of business in this Court at this time of the term, I have thought it better to deliver this judgment at once. 12. I should normally have liked to have taken a little time till tomorrow in order to put this judgment into proper arrangement, but in view of the pressure of business in this Court at this time of the term, I have thought it better to deliver this judgment at once. 12. It will be seen from the notice of motion that the applicant is now applying to re-open the adjustment made on the 6th June, 1926, as well as to re-open the decrees passed in this suit. 13. For the present application, the applicant relics on sec. 36 (1) (a) and (b) of the Bengal Money-Lenders Act, There is no question here of any suit brought by a borrower for relief under the section since the applicant, the borrower, is making his application to the Court for the present relief only on his present application in the execution proceedings and not by a separate suit. But it is contended by Mr. Das Gupta for the applicant that this application is now being made in a suit to which this Act applies within sec. 36 (1) with reference to the definition of that phrase in sec. 2 (22) of the Act. The suit itself in which the proceedings in execution have taken place in Suit No. 341 of 1930 and was instituted in 1930. Therefore the suit itself is not a suit instituted on or after the 1st January, 1939, which is one of the classes of suit referred to in sec. 2 (22), nor is it a suit pending on the 1st January, 1939, which is another class of suit referred to in sec. 2 (22). 14. Mr. Das Gupta, however, contends that it comes within the definition of a suit to which this Act applies by reason of being a proceeding in execution. In regard to his reasons for contending that this is a proceeding in execution covered by the definition of the suit to which this Act applies, he says, first, that the execution proceedings come within sec. 2 (22) irrespective of date. That they come within sec.2 (22) even if only instituted in February, 1944, by the order for revival. I do not accept this contention. He says, however, alternatively, that as the execution proceedings were instituted in June, 1934, and are still pending, they come within the definition on that ground. 2 (22) irrespective of date. That they come within sec.2 (22) even if only instituted in February, 1944, by the order for revival. I do not accept this contention. He says, however, alternatively, that as the execution proceedings were instituted in June, 1934, and are still pending, they come within the definition on that ground. This, for the reasons which I will go into in further detail in a moment, in my view, appears to be correct. 15. The first matter which arises in considering whether the matters sought to be re-opened on this application can be re-opened is as to the construction of the proviso to sec. 36 (1). This proviso reads as follows; Provided that in the exercise of these powers the Court shall not-- (1) re-open any adjustment or agreement, purporting to close previous dealings and to create new obligations, which has been entered into at a date more than twelve years prior to the date of the suit by the parties or any person through whom they claim. 16. Now, considering, first, the question whether the adjustment of the 6th June, 1926, can be re-opened, the period of 12 years mentioned in the proviso expired on the 6th June, 1938. For the purpose of this proviso, Mr. Das Gupta contends that "the suit" refers to this Suit No. 341 of 1930 and not to the execution proceeding. If this contention is correct, a suit having been filed only four years after the adjustment, clearly the re-opening of the adjustment is not barred under the proviso. 17. It is contended, on the other hand, on behalf of the Respondent that "the suit" mentioned in the first part of the proviso should be taken as the proceedings in execution in this matter. Here, again it is possible to take two dates for the proceedings in execution. Even on this basis, if, in favour of the applicant, the dates of the proceedings in execution are taken as the start of the execution proceedings in 1934, which have been merely revived and in which the present application is being made, this being less than 12 years in the settlement of 1926, the re-opening of this adjustment is not barred under the proviso. 18. 18. It is contended further on behalf of the Respondent that the date to be given to the suit in the first part of the proviso should be the present date of this present motion, that is to say, the 5th May, 1944, or, at the very outset, the date when the application for its revival was made on the 3rd February, 1944, and in that event it is clear that more than 12 years would have elapsed since the adjustment of 1926, and accordingly the adjustment would be prevented from being re-opened by the proviso. 19. In my view, the suit to which this Act applies clearly cannot refer to the present application itself. This appears to be clear from the words "if in any suit," which appear in the 2nd line of sec. 36 (1). These words, to my mind, show clearly that either the execution proceedings in general, or the suit itself, are being referred to. 20. This being so, whether the "suit to which this Act applies" in the present case is taken to be the suit filed in 1930, or the execution proceedings begun in 1934, in my view, the reopening of the adjustment of 1926 is not barred by the proviso to sec. 36. It is true that there have been conflicting decisions, both of them on the Appellate Side of this Court, as to whether the suit to which this Act applies, as defined in sec. 2 (22) for the purpose of sec. 36, relates to the date of the institution of the suit or to the execution proceedings. Mr. Das Gupta relies on the judgment of their Lordships--Mr. Justice Mukherjea and Mr. Justice Blank--in the case of Baidyanath Dutta v. Mrityunjoy Mukherjee 48 C. W. N. 504 (1942) where it was held that the suit was the mortgage suit itself. 21. Mr. Dutt, on the other hand, for the Respondent, relies on the decision of their Lordships--Mr. Justice Roxburgh and Mr. Justice Mukherjea and Mr. Justice Blank--in the case of Baidyanath Dutta v. Mrityunjoy Mukherjee 48 C. W. N. 504 (1942) where it was held that the suit was the mortgage suit itself. 21. Mr. Dutt, on the other hand, for the Respondent, relies on the decision of their Lordships--Mr. Justice Roxburgh and Mr. Justice Akram--in Jagabandhu De v. Akhoy Kumar Seal 46 C. W. N. 906 (1942), and he points out that though this is reported in an earlier volume of the Calcutta Weekly Notes the judgment was delivered in fact on the 19th June, 1942, which is one month later than the judgment delivered in the case in Baidyanath Dutta v. Mritunjoy Mukherjee 48 C. W. N. 504 (1942) which was delivered on the 19th May, 1942. 22. In the case of Jagabandhu De v. Akhoy Kumar Seal 46 C. W. N. 906 (1942), Mr. Dutt relies on the judgment of Mr. Justice Roxburgh, where he holds that if the application is made in execution proceedings, " the suit" referred to in sec. 36 (1) is in the view of the Court in that case the execution proceeding itself and not the suit. As I have already noticed, in respect of the dates in the present application, this makes no difference in the present application, provided the date for the execution proceedings is taken as the original date when the execution proceedings were started in 1934 and not the date when they were revived, or the date of the present motion. Since the term "suit to which this Act applies" is defined in sec. 2 (22) as meaning a proceeding pending on the 1st January, 1939, and since furthermore, it is expressly provided in sec. 2 (22) that the term "suit" includes a proceeding in execution, it appears to be the clear intention of the Act that the proceeding in execution itself may be considered for this purpose itself as a suit to which this Act applies. 23. Having regard to these considerations, I accordingly hold in the present case, that, in my view, there is no bar by reason of the proviso to sec. 36 (1) preventing the applicant from reopening the adjustment of 1926. 24. Mr. Das Gupta, on behalf of the applicant, then goes to the next stage, where he relies on sec. 36 (1) (a) and (b) to re-open the decrees themselves. 36 (1) preventing the applicant from reopening the adjustment of 1926. 24. Mr. Das Gupta, on behalf of the applicant, then goes to the next stage, where he relies on sec. 36 (1) (a) and (b) to re-open the decrees themselves. Since the whole proceeding in execution is based on the execution of the decree itself, and since the decree itself is to obtain payment of the loan, having given the matter the best consideration that I can, it appears to me that the applicant is entitled to re-open the whole matter of the decree itself. 25. Mr. Dutt, in regard to the question of how the transaction should be re-opened and what directions should be given as to the accounts to be taken, has relied on the case of The Bank of Commerce, Ltd. v. Amulya Krishna Basu 48 C. W. N. (F. R.) 37 at P. 43 (1943). But I do not see that for the present case much assistance can be obtained from the observations of the Court in that case in the different circumstances of this case. 26. To avoid ambiguity, I should add this. Having come to the conclusion that the adjustment of the 6th June, 1926, should be re-opened, there has been some discussion as to how this should be done. As already noticed that adjustment provided for interest to be paid at a settled sum of Rs. 10,528 at 22 per cent. per annum thereafter. It might be said that the settled account should stand, and the account being taken should only relate to the amount of interest which is due since that settlement on the 6th June, 1926. That is one of Mr. Dutt's contentions. 27. The other method of re-opening the adjustment of 1926 is to treat it as having to be reopened, not only for the interest payable thereafter, but as to the sum of Rs. 10,528 purported to be settled thereunder. The proviso to sec. 36 is not, possibly, in its wording, entirely clear as to this. It appears to me, however, having given both the proviso and the rest of the sec. 36 (1) the best consideration which I can, that the proviso is intended to allow of an adjustment in exactly such a case as the present being completely re-opened as a step towards re-opening the original transaction. It appears to me, however, having given both the proviso and the rest of the sec. 36 (1) the best consideration which I can, that the proviso is intended to allow of an adjustment in exactly such a case as the present being completely re-opened as a step towards re-opening the original transaction. I am accordingly proceeding on this view and wish to make it clear that the intention of this judgment is that the Registrar should, in effect, ignore the adjustment of the 6th June, 1926, for the very reason that this adjustment itself was made on a scale of interest, which is not the scale-down rate provided for under the Bengal Money-Lenders Act. 28. I accordingly pass a new preliminary decree under sec. 34, and I direct the Registrar to take fresh accounts to find out what is due. I also direct that payment be made in two instalments, the first instalment within two months after the report of the Registrar is submitted, and the 2nd instalment to be paid one year after. 29. It should be noted that the applicant contends that nothing will be found due. In that event, of course, the order for instalments will not take effect, as is obvious. 30. In regard to the adjustment which I mentioned as having been alleged to have been made between Monmotha Nath Banerji and the applicant, Mr. Dutt, for the applicant, states that he has disputed this adjustment before Mr. Justice Das, and is not admitting it at the present day. It follows from what has been said, that if either party sought to rely on that adjustment, which is not at present clear, that adjustment would have to be re-opened, if necessary, to achieve the main adjustment of the original decree. 31. The Respondent will take his costs of this application, in any event. Regarding cl. (4) of the notice of motion, the parties will be at liberty to apply as to this, if necessary, after the taking of the accounts.