JUDGMENT 1. This appeal is by the decree-holder and it is from an order passed in proceedings under sec. 36 of the Bengal Money-Lenders Act. The facts which need be stated shortly are as follows:--One Rawsan Ali mortgaged certain property to the Appellant. Thereafter Rawsan Ali's interest was acquired by Indu Kumar Bhattacharya. Indu Kumar declared that he was a benamdar for Debendra Mohan Moitra, Sudhansu Bala Devi and Sudebi Moitra. The two ladies' interests were acquired by Sibendra. The result is that in the place of Rawsan Ali we have two persons interested in the mortgage security, namely Debendra and Sibendra. A suit was instituted by the mortgagee against these two persons and a mortgage decree was obtained. Thereafter Debendra and Sibendra applied for relief under sec. 36 of the Bengal Money-Lenders Act. While these proceedings were pending Debendra applied before the Debt Settlement Board and a notice was sent to the learned Subordinate Judge who was hearing the application under the. Bengal Money-Lenders Act and he stayed the proceedings so far as Debendra was concerned and continued the hearing as against Sibendra. He re-opened the mortgage decree and passed a fresh decree. It is against this decree that the decree-holder appeals. In view of the decision at which we have arrived it is not necessary for us to consider many of the points which were raised before us. In our opinion, no decree could be passed in the absence of Debendra. It should be remembered that he filed an application for reopening the decree and for passing a fresh decree in accordance with the provisions of the Bengal Money-Lenders Act. The decree that was re-opened was a mortgage decree and therefore the decree that would have to be passed would be a mortgage decree. We find it difficult to appreciate how under the law a mortgage decree can be passed in the absence of one of the mortgagors. The provisions of Or. 34, r. 1 are quite clear. It says: Subject to the provisions of this Code, all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any suit, relating to the mortgage. 2. A mortgage decree must be passed in the presence of such persons and a decree passed in the absence of Debendra would not therefore be a proper mortgage decree. 2. A mortgage decree must be passed in the presence of such persons and a decree passed in the absence of Debendra would not therefore be a proper mortgage decree. We also draw the learned Judge's notice to sec. 60 of the Transfer of Property Act, especially to the provisions of the last paragraph of that section which runs as follows: Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired in whole or in part, the share of a mortgagor. 3. The proper course which the learned Judge should have adopted was to stay the entire proceedings until the matter before the Debt Settlement Board was disposed of. We would point out further that the decree passed by the learned judge is not in accordance with the provisions of sec. 34 of the Bengal Money-Lenders Act. It is not a mortgage decree but a simple money decree. In this suit the only decree that can be passed is a mortgage decree. Next, although it is true that the granting of instalment is to a large extent discretionary, it must nevertheless be remembered that the exercise of this discretion must be based on proper legal evidence. We find here that the evidence is entirely insufficient to justify the Court in granting the instalments given. 4. For these reasons we set aside the decree passed by the learned Subordinate Judge and direct that the application be re-heard according to law in the light of the observations made above in the presence of Debendra and after the proceedings under the Bengal Agricultural Debtors Act have been disposed of. In our opinion, the mortgagee Appellant should get the costs of this appeal---hearing-fee being assessed at five gold mohurs. 5. We wish to express our dissatisfaction with the work of the office of the learned Subordinate Judge. The original mortgage decree should have been drawn up as a decree for sale but it had been drawn up as a decree for foreclosure. Carelessness of this description is regrettable and we trust that the Subordinate Judge will take proper steps against the persons responsible. The original mortgage decree should have been drawn up as a decree for sale but it had been drawn up as a decree for foreclosure. Carelessness of this description is regrettable and we trust that the Subordinate Judge will take proper steps against the persons responsible. We direct that the matter be heard as expeditiously as possible as the decree-holder has been kept out of his dues for a very long time already.