Judgement Appeal (No. 25 of 1942) from a judgment and decree of the High Court in its civil appellate jurisdiction (July 31, 1941), which reversed a judgment and decree of that court in its ordinary original civil jurisdiction (June 25, 1941). The following facts, which were not in dispute, are taken from the judgment of the Judicial Committee The action out of which this appeal arose was brought by the plaintiffs, who were respondents 1-4, to obtain relief under the provisions of the Bengal Money Lenders Act, 1940, in respect of a mortgage dated May 25, 1914, whereby all persons interested in certain properties mortgaged them to the Maharaja of Darbhanga to secure the sum of Rs.6 lacs, with interest at six per cent, per annum. It is unnecessary to set out the title of the various parties. From time to time various amounts were paid to the mortgagee in respect of the sums due under the mortgage, and on June 12, 1935, in an action which he instituted against the mortgagors, a decree by consent was made in the action for some Rs.4,58,058, the balance due to him under the mortgage, which together with the amount already paid would exceed double the amount originally advanced. On September 17, 1936, the Maharaja assigned the benefit of the decree and the benefit of the securities under the mortgage deed to the appellant, who gave value therefor, and on February 2, 1937, she obtained the leave of the court to execute the decree. On September 1, 1940, the Bengal Money Lenders Act, 1940, came into operation, and thereupon the respondents 1-4 instituted proceedings in the High Court of Calcutta claiming relief under that Act. By that time more than twice the sum advanced had been paid either to the Maharaja or the appellant, and the respondents claimed in the action a declaration that they were not liable to pay any more, and also asked for repayment of money paid by them in excess of the amount allowed by the Act, though that latter claim was not pursued at the trial. The case was heard before Edgley J., who dismissed the action. The case was heard before Edgley J., who dismissed the action. On appeal his decision was reversed by the Appellate Division of the High Court (Derbyshire C.J. and Nasim Ali J.), who granted a declaration that the plaintiffs in the action were not liable to make any further payments either under the mortgage or under the decree of June 12, 1935, or otherwise. It was from that decree of the High Court that the present appeal was brought. The relevant provisions of the Bengal Money Lenders Act, 1940, appear from the judgment of the Judicial Committee. 1945. Feb. 5, 6. Sir Herbert Cunliffe K.C. and W. W. K. Page for the appellant. The question is whether the Bengal Money Lenders Act, 1940, gives any relief to a mortgagor before the Act in respect of a final decree, made by consent before the Act, for payment of an agreed amount for principal and interest and assigned, also before the Act, to a bona fide assignee for value, where the rate of interest is well within the limits fixed by the Act. The answer to that question should be in the negative. The real contest is between the appellant, as the assignee of the decree, and the first four respondents as the assignees and successors of the mortgagors. It is submitted, first, that this Act has no relation to assignments which have taken place before the commencement of the Act; its provisions relate to loans and assignments which took place after the date of the Act, and they can only be effective if notice is given to an assignee of the application of the Act to the assignment which he has taken. It would require something very explicit to satisfy the court that the Act applied to a pre-Act assignment. The appellant took her assignment before the Act came into operation, and it is not reasonable to suppose that the legislature took all this trouble to protect an innocent assignee after the Act and yet left an even more innocent assignee before the Act in a worse position than one after the Act. If the Board is of opinion that the protection for the assignee after the Act is also to be applied for the benefit of the assignee before the Act, that is sufficient for the appellant. If the Board is of opinion that the protection for the assignee after the Act is also to be applied for the benefit of the assignee before the Act, that is sufficient for the appellant. Secondly, this is not a case of suing in respect of a mortgage, but in respect of a decree—the old debt due under the mortgage has been merged in the decree which was passed at the instance of the mortgagee. With regard to s. 30 of the Act, the appellant is not applying for any interest outstanding, and cl. (c) of sub-s. 1 of s. 30 does not apply because the interest is well within the limits, so that it comes back to cl. (a) of sub-s.1 of s. 30, on which the respondents would appear to rely. Thereunder the borrower is not to be liable to pay "any sum in respect of principal" and interest which....exceeds twice the principal of the "original loan.” The appellant, however, is not asking for any sum "in respect of principal and interest"; she stands on the decree, and that is a fatal objection to the application of that sub-section, which does not apply where the whole of the mortgage debt is embraced in a decree. Once the matter is crystallized into a decree the old debt in respect of the loan and interest is gone. In view of sub-s.5 of s. 36, which provides that "Nothing" in this section shall affect the rights of any assignee or holder for value if the court is satisfied that the assignment to him was bona fide, and that he had not received the notice referred to in cl. (a) of sub-s. (1) of s.28, the whole of the powers conferred by s. 36 are wiped out for the purposes of this case, for they cannot be applied to the detriment of a bona fide assignee for value. Any inconsistency there may appear to be between s. 30 and s. 36 disappears on the construction submitted. It is plain that the question formulated in opening was answered in the affirmative in the judgment now appealed from, and in the negative by two judges of the same High Court in Rajendra Bala Devi v. Jadabananda Sarcar Choudhury (Judgment of Cal. H. C, July 7, 1942 (unreported).). A statute is prima facie prospective Halsburys Laws of England, 2nd ed., vol. H. C, July 7, 1942 (unreported).). A statute is prima facie prospective Halsburys Laws of England, 2nd ed., vol. 31, p. 513, para.670; p.516, para.671. That is a material statement of the law Applicable in a case like the present, where the contractual rights of the parties are affected and there is an order of the court. [Reference was also made to Young v. Adams ([ 1898] A. C. 469, 476.).] Summarizing the question formulated in opening should be answered in the negative, (a) because relief under s. 30, sub-s. 1 (a), is not in respect of a decree, but only in respect of principal and interest still to be paid, and here no principal and interest are asked for. (b) Even if s. 30, sub-s. 1 (a), applies to a decree, relief can only be obtained under s. 36, and the saving clause, sub-s. 5, protects the appellant in this case, i.e., it protects a bona fide assignee for value, (c) It may be that in respect of interest over eight or ten per cent, a decree should be reopened, but there is no such question arising here. (d) This is a case of assignment before the Act, and the Act does not apply to such an assignment, except possibly with regard to excess interest, (e) This was a consent decree, and unless there is the clearest possible language empowering the court to reopen a decree made by consent it should not be done. W. W. K. Page followed. All the provisions of s. 30 are only available for the relief of a borrower, and relate only to the point of time when the loan is still subsisting. The judgment-debtor cannot come in under s. 30 and ask for relief where his rights have been merged in a decree. Proviso (ii.) to sub-s.1 of s. 36must relate o an interlocutory decree which had not been fully satisfied on that date. Therefore a decree which may be affected under s.36 must be a decree in a suit which is pending on January 1, 1939. So that has no application to decrees which are already final before that date. Proviso (ii.) to sub-s.1 of s. 36must relate o an interlocutory decree which had not been fully satisfied on that date. Therefore a decree which may be affected under s.36 must be a decree in a suit which is pending on January 1, 1939. So that has no application to decrees which are already final before that date. The Act does not contemplate, and does not provide for, the assignment of a decree; accordingly, the rights of the parties under the assignment here are not governed by the provisions of the Act, but by the law as at the date of the assignment, Le Quesne K.C. and Pringle for the respondents 1-4. The respondents are entitled, as against the assignee, to the protection which is given them, and, it is submitted, plainly given, by s. 30, sub-s.1 (a); they have already repaid more than twice the principal of the original loan and are not liable to pay more. [The Board having conferred, counsel was required to deal only with s. 36 and sub-s. 5 thereof.] With regard to the general effect of the provisions of the Act on the rights of an assignee, first, in the case of a loan which was made before the Act and assigned before the Act, and assuming, as here, that the limits allowed by the Act have been exceeded, any loss occasioned by the reduction of the amount to those limits is to lie where it falls, and if there has been an assignment it falls on the assignee. That is the effect of s. 29, sub-s. 2. The two other sets of circumstances are (a) a loan before the Act, which is assigned after the Act, and (b) a loan both made and assigned after the Act. As regards (a) and (b) the policy of the Act is that any loss arising in those two instances from reduction is to fall on the lender ss. 28, 29. Taking the facts of this case—a pre-Act loan and a pre-Act assignment—the loss arising from the reduction to the permitted limits lies where it falls—on the lender if he has not assigned ; on the assignee if he has. That is the policy of the Act. 28, 29. Taking the facts of this case—a pre-Act loan and a pre-Act assignment—the loss arising from the reduction to the permitted limits lies where it falls—on the lender if he has not assigned ; on the assignee if he has. That is the policy of the Act. The appellant says that sub-s.5 of s.36 preserves the rights of a pre-Act assignee against the borrower, so that the borrower here must pay to the assignee the amount in full. If that was in fact the intention of sub-s.5 of s. 36, one would not have expected to find it in Chapter VII., which is headed "Miscellaneous,” but rather in Chapter V., which deals with the substantive rights of assignees. It is submitted that sub-s. 5 for the purposes of this case is not effective at all, and that the intention of the Act is that the rights of the assignee are to be no greater than those of the assignor. In this case, if the appellant is right, the assignee does get by his assignment rights in excess of those of his assignor. The rights of the assignee in sub-s.5 of s. 36 are those of an assignee under this Act, and sub-s. 5 is simply saying that none of the rights of the assignee under this Act are to be cut down by anything in this section. But, on the other hand, and this is the converse, nothing in sub-s.5 is to increase the rights of the assignee. The object of sub-s.5 is to protect the rights which the Act gives to the assignee. If, therefore, he took an assignment of a decree which his assignor was not able to enforce in full, the Act obviously intends that if the assignee sues on it he shall be met by the defence which the borrower could have used effectively against the assignor. Notice under the Act could not be given to this assignee because the Act did not exist when the assignment was made. It cannot be that sub-s.5 of s.36 deprives the borrower of a right which is so plainly given to him by s. 30, sub-s.1 (a). Notice under the Act could not be given to this assignee because the Act did not exist when the assignment was made. It cannot be that sub-s.5 of s.36 deprives the borrower of a right which is so plainly given to him by s. 30, sub-s.1 (a). If the construction of sub-s.5 for which the respondents contend is accepted, which, of course, makes it far narrower in its application, the borrower is not deprived of the right which the Act, in s. 30, intended him to have—that he has never to pay more than twice the sum lent—and such a construction should be preferred to one which has not that effect. In short, the construction of sub-s.5 submitted for the appellant does violence to the policy of the Act, and cannot be reconciled with that policy as it appears in the provisions of the Act. Further, sub-s.5 clearly contemplates circumstances in which a notice could be given, and therefore confines itself to post Act assignments; we are here concerned with a pre-Act assignment. The matter was correctly put by Edgley J. in holding that the sub-section could not be taken to protect a person in the position of the appellant. Pr ingle followed. Sir Herbert Cunliffe K.C. in reply. Had the legislature meant what the respondents say is the meaning of sub-s. 5 of s. 36 it was easy for them to have said so. The subsection gives this right without any qualification. Mar. 7. The judgment of their Lordships was delivered by LORD GODDARD, who stated the facts set out above and continued The question for decision was conveniently summarized by Sir Herbert Cunliffe in these terms Does the Act of 1940 enable the court to afford relief to a mortgagor under a mortgage executed before the Act in respect of a final decree made by consent before the Act for the payment of an agreed amount of principal, interest and costs, and assigned before the Act to a bona fide assignee for value, where the rate of interest is well within the limits allowed by the Act ? Their Lordships would observe, however, that in their opinion the fact that the decree was made by consent is immaterial, as is also the fact that the amount was agreed. Nor do they think that the rate of interest in the present circumstances is material. Their Lordships would observe, however, that in their opinion the fact that the decree was made by consent is immaterial, as is also the fact that the amount was agreed. Nor do they think that the rate of interest in the present circumstances is material. It seems to them that the real question here is whether the court can grant relief to a judgment-debtor for money lent against a bona fide assignee for value of the decree where both the decree and the assignment took place before the Act came into operation. The Act, No. X of 1940, was passed to regulate and control money-lenders and money-lending transactions in Bengal, and applies to loans made by anyone and not only by professional money-lenders. Its main provisions, so far as are material for present purposes, are that maximum rates of interest are prescribed, and no borrower is to be liable to repay to a lender more than twice the amount of the principal advanced whatever the rate of interest may be. Provision had naturally to be made for cases where the lender assigned his rights, and Chapter V. of the Act, ss. 28 and 29, deal with the assignment of loans. These two sections were meticulously examined by both the trial judge and the court on appeal, but in the opinion of their Lordships these sections have no application to the present case. They deal with the assignment of loans where the relation of lender and borrower still exists; while that is, the contract is still executory. They do not apply where there has been a judgment. The contract is then merged in the judgment and the relationship between the parties is that of judgment-creditor and judgment-debtor and no longer that of lender and borrower. If authority be needed for this proposition, which is really elementary, it will be found in the case referred to by Edgley J. of Kusum Kumari v. Debt Prosad Dhandhania (( 1935) L. R. 63 I. A. 114, 124.). If authority be needed for this proposition, which is really elementary, it will be found in the case referred to by Edgley J. of Kusum Kumari v. Debt Prosad Dhandhania (( 1935) L. R. 63 I. A. 114, 124.). The section which gives relief to the borrower is s. 30, which, so far as is material, is as follows — "Notwithstanding anything contained in any law for the time being in force, or in any agreement, (1.) no borrower shall be liable to pay after the commencement of this Act— (a) 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 loan was advanced or such amount was paid or such decree passed or such interest accrued before or after the commencement of this Act;...." The effect of this section is to afford a defence to a borrower as to the amount for which he is liable, and that is all that it does. It does not affect judgments already obtained, but merely provides that the amount of a judgment already obtained is to be taken into account in calculating the final amount for which a borrower may be liable. So if, for instance, the original loan were for Rs.1,000, and the principal and interest were payable by instalments, and a decree had been obtained for Rs.500, not more than Rs. 1,500 could be obtained under any subsequent decree. That section, therefore, cannot of itself avail a judgment-debtor against whom a decree has been regularly obtained and remains unreversed. Section 36, however, provides for the reopening of past transactions. It is a long section, containing a number of provisions, and there is no need to quote it in extenso. By sub-s.1 the court is given power to reopen any transaction and take an account between the parties, reopen any account already taken following on an agreement between them, release the borrower from liability in excess of the limits specified in s. 30, and give other consequential relief. This may be done either in an action brought by the lender or in one brought by the borrower to obtain relief under the section. This may be done either in an action brought by the lender or in one brought by the borrower to obtain relief under the section. It will be observed that the sub-section does not specifically mention a judgment or decree as one of the matters which the court may reopen, but it is abundantly clear that it is intended to give the court that power. The drafting of the section is unfortunate and obscure, but inasmuch as by the second proviso to sub-s. 1 it is enacted that in the exercise of its powers the court shall not " do anything which affects any decree of a court, " other than a decree in a suit to which this Act applies "which was not fully satisfied by the 1st January, 1939," and as sub-s. 2 contains a variety of provisions as to what the court may and may not do on reopening a decree, it is clear that the legislature intended that the power of reopening a transaction should extend to reopening a decree obtained by a lender which had not been fully satisfied by January 1, 1939. Sub-section (5), however, provides that "nothing in" this section shall affect the rights of any assignee or holder " for value if the court is satisfied that the assignment to him " was bona fide, and that he had not received the notice referred to in clause (a) of sub-section 1 of section 28." That is a notice which it is made obligatory on the lender to give to any one to whom he assigns his debt. In their Lordships opinion, the only right which the plaintiffs in this action had of reopening the decree of June 12, 1935, was under this section. Had the decree not been assigned they could have instituted an action for relief against the judgment-creditor ; but as it had been assigned to one who took it bona fide and for value, and who ex hypothesi had not received the notice referred to in the section, they cannot maintain any claim for relief against the assignee. Had the decree not been assigned they could have instituted an action for relief against the judgment-creditor ; but as it had been assigned to one who took it bona fide and for value, and who ex hypothesi had not received the notice referred to in the section, they cannot maintain any claim for relief against the assignee. The learned trial judge thought that the subsection did not protect the assignee because it referred to a notice which could not have been given, as the Act was not in force at the time of the assignment; he based his judgment on the ground that s. 30 could not affect a decree retrospectively. Their Lordships cannot agree with either of these grounds. With regard to the first, the assignee fulfils all the requirements of the section, and to hold otherwise is equivalent to saying that an assignee to whom notice could not be given is to be in as bad a position as one who had received notice. Mr. Le Quesnes main argument for the respondents was that " the rights of any assignee " referred to in the sub-section must be construed as meaning the rights of an assignee under the Act, for instance, the right of indemnity given by s. 28, sub-s. 2. This means that the court must read into the subsection the words “conferred by this Act " immediately after the words “holder for value." If that is what the legislature meant it would have been quite easy to say so. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so, whereas here the section as it stands is apt in its language to afford protection to the rights of bona fide purchasers for value, as is nearly always given in legislation of this description. Their Lordships are also unable to agree with the opinion of the learned judge as to s. 30 having no retrospective effect. In one sense this is true, because, as already pointed out in this judgment; all that the section by itself does is to give the borrower a defence as to quantum when sued. Their Lordships are also unable to agree with the opinion of the learned judge as to s. 30 having no retrospective effect. In one sense this is true, because, as already pointed out in this judgment; all that the section by itself does is to give the borrower a defence as to quantum when sued. But when that section is read with s. 36 it appears to their Lordships to be clear that the relief given by the section can be granted where relief under the Act is sought by a judgment-debtor in respect of a decree which had not been fully satisfied by January 1, 1939, and which must, therefore, have been obtained before the Act came into force. It remains to say a word with regard to the judgment of the High Court on appeal. As their Lordships understand the judgment of the Chief Justice, he thought that it was unnecessary to invoke s. 36, but that he could give a declaratory judgment in favour of the plaintiffs under s. 42 of the Specific Relief Act or under the provisions of the Code of Civil Procedure, declaring that they need pay no more. In whatever form such a declaration might be expressed it would have the effect of restraining a judgment-creditor who has obtained a regular and final decree from proceeding to execution. Such a result could only be reached by re-opening the decree under the provisions of s. 36 of the Act of 1940, which for the reasons given in this judgment does not apply to this case. Their Lordships will humbly advise His Majesty that this appeal should be allowed and the decree of the High Court made in its civil appellate jurisdiction be set aside, and the decree of the court made in its ordinary original civil jurisdiction be restored, though on different grounds. The first four respondents should pay the cost of the appeal to the High Court in its appellate jurisdiction and to His Majesty in Council.