JUDGMENT Chakravartti, J. - Of the three points involved in this appeal, two are now covered by authority but the third appears to be a point of first impression. The learned advocate who had entered appearance on behalf of the respondents attended the hearing but stated that he had received no instructions from his clients and would not make any submissions. Accordingly, no argument was addressed to me on behalf of the respondents, but Mr. Roy Choudhury, who appeared for the appellant, drew my attention to all the relevant materials and I have myself gone through the records. 2. The appeal arises out of an application made by the appellant under S. 36, Bengal Money-Lenders Act. Both the Courts below have treated it as an application and the form and contents of the document can leave no doubt that in so treating it they were right. Mr. Roy Choudhury however contended that the Courts below had erred and what his client had filed was not an application but a suit. I am unable to accept this contention and equally unable to appreciate its purpose. A new decree was passed by the trial Court and therefore there could be no difficulty about the right of appeal, if the document was treated as an application. Nor could there be any question of any remedy not being available on an application which would be available in a suit. In form, again, and textually, the document is clearly an application. The appellant described himself as a petitioner and the respondents as opposite parties; and his principal prayer was that the original suit might be re-tried. The proceeding was commenced within one year of the commencement of the Act. In the circumstances the document by which the proceeding was commenced was clearly an application for review as contemplated by S. 36 (6) (a) (ii). The facts leading up to this litigation may now be stated. 3. On 19th December 1925 by a registered deed of mortgage, the appellant borrowed a sum of Rs. 280 from one Rehanuddin, the predecessor-in-interest of the respondents. The deed provided that possession of the mortgaged properties would be given over to the mortgagee who would enjoy their usufruct in lieu of interest and would further allow the mortgagor credit for Rs. 4 per year in respect of the principal. 280 from one Rehanuddin, the predecessor-in-interest of the respondents. The deed provided that possession of the mortgaged properties would be given over to the mortgagee who would enjoy their usufruct in lieu of interest and would further allow the mortgagor credit for Rs. 4 per year in respect of the principal. If, however, the mortgagee was dispossessed from the lands, by some fault or default of the mortgagor, interest would be payable from the date of such dispossession at the rate of one anna per rupee per month, i. e., Rs. 75 per cent, per annum. The deed also contained a personal covenant. Rehanuddin died in year 1926, leaving him surviving the respondents, besides other heirs. Respondent 1 is his widow, respondent 2 a son and respondent 3 a daughter, the last two being still minors. 4. On 4th April 1930, the respondents commenced a suit on the mortgage, being Suit No. 1513 of 1930, on the allegation that the remaining heirs of Rehanuddin had surrendered their rights in their favour. The suit was brought in forma pauperis. The plaint alleged that possession of the mortgaged properties had not been delivered to the mortgagee at all and on that footing interest was claimed in accordance with the alter, native stipulation. The sum due on account of interest according to the bond rate was Rs. 883-4-0, but of that sum the plaintiffs claimed only Rs. 420 which, together with the principal, amounted to Rs. 700. The total claim in the suit was laid at that figure. 5. The defence, inter alia, appears to have been that after the mortgage there was a re-settlement of the lands with the mortgagor and the latter continued to possess them as a bargadar under the mortgagee; that on the death of the mortgagee, the care of his widow and minor children was taken up by an elder brother named Asanulla and to him the mortgagor had, within a year, paid up the entire amount due on the mortgage; and that the latter had granted a registered receipt in full satisfaction of the debt. The original receipt, it appears, was filed by the mortgagor and is still on the record. 6. The suit was, however, ultimately decreed ex parte for the full amount claimed in the absence of the mortgagor whose application for an adjournment on the ground of illness was refused. The original receipt, it appears, was filed by the mortgagor and is still on the record. 6. The suit was, however, ultimately decreed ex parte for the full amount claimed in the absence of the mortgagor whose application for an adjournment on the ground of illness was refused. The preliminary decree was passed on 2nd March 1931 and the final decree on 14th September 1933. The properties were sold in execution for Rs. 100 on lath July 1937, being purchased by the decree-holders themselves, and possession was delivered to them on 26th October 1937. When the sale was confirmed does not appear from the record. The Bengal Money-Lenders Act came into operation on 1st September 1940. The application out of which the present appeal arises was made on 3rd February 1941. 7. The preliminary decree, it should here be stated, was in the form then in force, viz., Bengal Form No. 3276, High Court Civil process Form No. 26A. It stated the total amount payable to be RS. 801-12-0, made up of Rs. 700 due on the mortgage and rupees 101-12-0 awarded as costs. Nest it proceeded to direct that in default of payment of the sum determined due by the date fixed, the mortgaged properties or a sufficient part thereof should be sold; and it provided further that if the sale proceeds proved insufficient for the payment of the decretal dues, together with subsequent interests and costs the decree-holder would be entitled to apply for a personal decree for the amount of the unrealised balance. The final decree again stated the amount due under the preliminary decree to be Rs. 801-12 annas and directed the payment of that sum, together with subsequent interest and costs, out of the sale proceeds. The sale, as stated before, fetched only Rs. 100, but no application for a personal decree was ever made. 8. To return now to the course of the proceedings, the trial Court held that the decree was liable to be re-opened as "it contravened the provisions of S. 30 of the Act regarding rate of interest" and as "for a principal of Rs. 280 a decree for Rs. 700 had been allowed." The learned Munsif, however, reopened not merely the decree but the suit itself and proceeded, as it wore, to retry it. 280 a decree for Rs. 700 had been allowed." The learned Munsif, however, reopened not merely the decree but the suit itself and proceeded, as it wore, to retry it. He accepted the plea of full payment put forward in the suit; took into consideration a certain sum which the Government had realised from the appellant as court-fees; and also took into consideration the profits derived from the lands by the decree-holders since their purchase. He reached the conclusion that "the debtor had paid many times more than the principal amount" and passed a declaratory decree, absolving him of all liability and directing the decree-holders to restore to him possession of the auction-purchased lands He purported to act on the authority of what he called "a case reported in 45 C. W. N." which was obviously the decision in 45 C. W. N. 1091 Rai Manmatha Nath Bose v. Renula Bose ('41) 45 C. W. N. 1091. 9. The learned Munsif further held that the decree had not been fully satisfied on or before 1st January 1939, as the balance of the decretal amount remained due "in the shape of a personal liability" till long after that date. The decision of the learned Munsif was reversed on appeal. The lower appellate Court held that the learned Munsif had been in error in giving effect to the plea of payment, taken without success in the original suit, and equally in error in taking into consideration the amount of court-fees realised from the debtor. Nevertheless, there existed a ground for re-opening the decree in as much the interest allowed exceeded the limits prescribed by S. 30 of the Act, but there were three impediments in the way of re-opening it. In the first place, after the sale of the mortgaged properties which had been held on 12th July 1937, there was no decree subsisting or unsatisfied on 1st January 1939; in the second place, there was no suit or proceeding pending on or instituted after that date; and in the third place, there was nothing to be re-opened at the date of the application since the personal remedy had long become barred. In the result, the appellate Court set aside the judgment and decree of the learned Munsif and dismissed the appellant's application. 10. Against that decision, the present second appeal was preferred. Mr. In the result, the appellate Court set aside the judgment and decree of the learned Munsif and dismissed the appellant's application. 10. Against that decision, the present second appeal was preferred. Mr. Roy Choudhury, who appeared for the appellant, contended that in respect of each of the grounds given for the dismissal of the appellant's application, the lower appellate Court was in error. I am of opinion that this contention is correct. The decision of the trial Court was given on 7th January 1941 and that of the lower appellate Court on 21st February 1942. Neither Court had, therefore, the benefit of the several decisions of this Court which have since clarified and settled all but one of the points involved in the present case. 11. Of the three reasons given by the learned Subordinate Judge, two may at once be pronounced to be erroneous on the authority of, cases since decided. It is now settled that in order that relief may be given to a debtor under S. 36, Bengal Money-Lenders Act, it is at least not necessary that a liability should be subsisting on the date of the suit or application. So it was held in 48 C. W. N. 596 Balai Chand De v. Akshaya Kumar Seal ('44) 48 C. W. N. 596 and although the judgment in that case has since been subjected to some explanation by the learned Judge who delivered it, as regards another limit of time (see 49 C. W. N. 542) Bhupendra Nath v. Sushil Chandra ('45) 32 A. I. R. 1945 Cal. 370 : 49 C. W. N. 542, no doubt has been cast upon it so far as the present point is concerned. Both the cases above cited were cases of loans for which no decrees had been passed. In the later of them, there are certain observations which might at first sight suggest that in order that S. 36 of the Act might be applied to a loan, some liability subsisting at its commencement was required, but the facts of the case and the manner in which the earlier case was distinguished seem rather to suggest that what their Lordships really intended to hold was that some liability should have been subsisting on 1st January 1939, if not at the commencement of the Act. The loan in that case had been fully paid off in 1929 and in distinguishing 48 C. W. N. 596 Balai Chand De v. Akshaya Kumar Seal ('44) 48 C. W. N. 596 their Lordships said it was no authority for holding that a transaction would come within the scope of relief under the Act "whether or not there was anything payable by the borrower on or after 1st January 1939." It seems clear that they were treating 1st January 1939 as the material date but if by the decision it was intended to be held that some subsisting liability at the commencement of the Act was essential, I would, with due respect, differ. However, whatever the effect of 49 C. W. N. 542 Bhupendra Nath v. Sushil Chandra ('45) 32 A. I. R. 1945 Cal. 370 : 49 C. W. N. 542 may be, it does not say that some liability should be subsisting on the date of the suit or application and it does not cover cases in which there had been a decree. As respects decrees, the only date mentioned in the Act by reference to which its applicability to them should be judged is 1st January 1939. That date is specifically mentioned and subsistence of a decretal liability on that date is made sufficient to attract the operation of the Act when the transaction is otherwise liable to be reopened. There is nothing in the statute and in view of the specific provision there can be nothing in general principles which would make subsistence of a liability on the date of the suit or application or at the date of the Act a further requirement. 12. The second reason given by the learned Judge must be held to be equally erroneous. In holding that after the sale of the mortgaged property there could he no decree subsisting, he went very near to what was held in 46 C. W. N. 457 Naresh Chandra Gupta v. Lal Mamud Bhuiya ('42) 29 A. I. R. 1942 Cal. 379 : I. L. R. 1942 2 Cal. 243 : 202 I. C. 343 : 46 C. W. N. 457, but he could not have seen that decision, since it was given on 6th February 1942 and reported some time later. 379 : I. L. R. 1942 2 Cal. 243 : 202 I. C. 343 : 46 C. W. N. 457, but he could not have seen that decision, since it was given on 6th February 1942 and reported some time later. In the case above cited, it was held that a final decree would be fully satisfied by sale of the mortgaged properties but if the sale proceeds proved to be less than the decretal amount, the preliminary decree would not be. But it has since been held by the Full Bench decision in 48 C. W. N. 361 Mritunjoy Mitra v. Satish Chandra Banerjee ('44) 31 A. I. R. 1944 Cal. 193 : 213 I. C. 273 : 48 C. W. N. 361 (F.B.) that where, after a mortgage sale, a personal decree is passed for the balance due under the final decree, the latter is not satisfied till the amount mentioned in the personal decree is realised. No personal decree was actually passed in the present case and none was ever applied for, but that circumstance is immaterial. What is material is that the amount of Rs. 801-12-0, mentioned as due in the final decree, was not realised in full by the sale and on 1st January 1939, recovery of the balance by means of the personal remedy had not become barred. It follows that on the statutory date, the position was that neither the final decree nor the preliminary decree had been fully satisfied, even assuming that a decree is satisfied, although not paid off but only barred by limitation. 13. It remains now to consider the third reason of the learned Judge which is that there was, in the present case, no decree in a suit to which the Act applied since, according to him, there was no suit or proceeding pending on or instituted after 1st January 1939. The final decree, it will be remembered, was passed on 14th September 1933 and the sale took place on 12th July 1937. As far as I am aware, there is no decision covering this point but, in my view, the learned Judge is plainly wrong. As already stated, the mortgage-bond contained a personal covenant and the suit was brought within six years of the date of the bond, not to speak of the date of payment mentioned therein. As far as I am aware, there is no decision covering this point but, in my view, the learned Judge is plainly wrong. As already stated, the mortgage-bond contained a personal covenant and the suit was brought within six years of the date of the bond, not to speak of the date of payment mentioned therein. The preliminary decree specifically reserved liberty to the decree-holder to apply for a personal decree, if necessary. The sale under the final decree took place on 12th July 1937 and the confirmation, of which the date is not known, must have taken place at least a month later. The period of limitation for an application for a personal decree in such a case is three years from the date of the confirmation of the sale, 58 Cal. 741=35 C. W. N. 231 Krishna Bandhu v. Panchakari Saha ('31) 18 A. I. R. 1931 Cal. 166 : 58 Cal. 741 : 130 I. C. 815 : 35 C. W. N. 231, so that on 1st January 1939 about a year and a half of that period had still to run. The effect of that position, in my view, is that on the relevant statutory date, the original mortgage suit itself was pending and the decrees, being decrees in that suit, are decrees in a suit to which the Act applies. 14. There can be no decree unless there is a suit in which the decree can be passed. If the law provides that the plaintiff will be entitled to apply for a further decree till a certain point of time, that provision, in my view, involves that up to that point of time the suit will remain pending in order to admit of the decree being passed. If, in the present case, the decree-holder was entitled to make an application for a personal decree on 1st January 1939, as he undoubtedly was, the suit must have been in law, pending on that date in order that the application might be made. In order that a decree may be available, a suit must be available too. If, in the present case, the decree-holder was entitled to make an application for a personal decree on 1st January 1939, as he undoubtedly was, the suit must have been in law, pending on that date in order that the application might be made. In order that a decree may be available, a suit must be available too. In the Special Bench case in 48 C. W. N. 406 Aparna Kumari v. Girish Chandra ('44) 48 C. W. N. 406 (S. B.) where it was held that where all the decrees had been passed before 1st January 1939 and no proceeding in execution was pending on that date or instituted thereafter, the decrees were not decrees in a suit to which the Act applied, the following observation occurs : The mortgage suit was not pending on 1st day of January 1939, as after the passing of the personal decree there was nothing undecided.... The suit ended with the personal decree, This observation implies that as long as the personal decree is not passed, the suit remains pending, but I would not base my decision on this implication as it is the converse of what their Lordships actually said and the converse of a proposition is not always true. I may however refer to the Full Bench decision in 52 Cal. 828=29 C.W.N. 673 Francis Higgins Pell Vs. Minnie Gregory, AIR 1925 Cal 834 where it was held that an application for a personal decree is not an application for enforcing a judgment or decree but an application for a new decree in the suit. Clearly then, the suit subsists as long as an application for a personal decree can legally be made. Apart from authority, the scheme of O. 34, Civil P. C., and the respective forms of the three decrees suggest, to my mind, conclusively that the real decree in a mortgage suit is the preliminary decree and the other two decrees are merely further orders but orders made in the suit which does not run out its full course till the last of the decrees has been passed. I therefore reach the position that the preliminary and final decrees in the present case, being decrees in a suit which was pending on 1st January 1939, are decrees in a suit to which the Act applies and neither of them was fully satisfied by that date. I therefore reach the position that the preliminary and final decrees in the present case, being decrees in a suit which was pending on 1st January 1939, are decrees in a suit to which the Act applies and neither of them was fully satisfied by that date. The bar of Proviso (ii) to S. 36 (1) is thus crossed. But are the decrees liable to be re-opened on the merits? The learned Munsiff held that the preliminary decrees offended against S. 30 of the Act in two respects, since the rate of interest allowed exceeded the statutory maximum and since the amount decreed exceeded double the principal. Speaking for myself and as at present advised, I am of opinion that the second limit applied by the learned Munsif does not apply in the present case. The decree is one passed before the commencement of the Act and the question being whether the interest paid before such commencement or included in the pre-Act decree is a legal liability, the provision applicable would be cl. (2) of S. 30 which refers only to sub-cl. (c) of cl. (1) and, significantly, does not refer to sub-cl. (a). The limit of twice the principal is laid down only in the latter sub-clause. I am aware that in 45 C. W. N. 1091 Rai Manmatha Nath Bose v. Renula Bose ('41) 45 C. W. N. 1091, sub-cl. (a) has been held to be of general application; but I need not express any final opinion on this matter as the interest included in the decree in the present case clearly violates the other limit as well. Since the interest allowed works up to a rate far in excess of that permissible under S. 30 (1) (c), the decrees are liable to be re-opened on that ground alone. 15. But although the decrees must be re-opened, they cannot be re-opened in the manner the learned Munsif adopted or with the result he declared. He was plainly wrong in giving effect to the debtor's plea of payment prior to the suit which, in the suit, he had advanced unsuccessfully. 15. But although the decrees must be re-opened, they cannot be re-opened in the manner the learned Munsif adopted or with the result he declared. He was plainly wrong in giving effect to the debtor's plea of payment prior to the suit which, in the suit, he had advanced unsuccessfully. As was pointed out by the Federal Court in the decision in 48 C. W. N. F. R. 36 Bank of Commerce v. Amulya Krishna ('44) 31 A. I. R. 1944 F. C. 18 : I. L. R. (1944) Kar F. C. 46 : 212 I. C. 138 : (1944) F. C. R. 126 : 48 C. W. N. F. R. 36 (F. C.), S. 36 (2) (a) does not relegate the parties to their rights and liabilities under the original cause of action but authorises the re-opening of the decree only to the extent necessary to substitute the method of accounting sanctioned by the Act in place of the calculation on which the original decree was passed. See also the case in 49 C. W. N. 367 Sambhu Charan v. Hrishikesh ('45) 49 C. W. N. 367. The learned Munsif was equally in error in taking into account the mesne profits as going towards the payment of the debt, although if he had taken them into account in considering what rate of interest he would allow for the period since delivery of possession or whether he would allow any interest for that period at all, he might have been justified: 40 C. W. N. 919 Tamluk Loan Office Ltd. v. Ganga Narayan Kar. ('42) 46 C. W. N. 919 and 46 C.W.N. 1026 Bogra Bank Ltd. Vs. Ramani Mohan Choudhury, AIR 1943 Cal 569 . Lastly, in view of the decision of the Privy Council in 49 C. W. N. 491 Renula Bose v. Manmatha Nath ('45) 32 A. I. R. 1945 P. C. 108 : 49 C. W. N. 491 (P. C.), it must now be held that no mere declaratory decree, such as the decree passed in the present case, could legally be passed on an application under S. 36, Bengal Money-Lenders Act, without a proper accounting in the manner laid down in the section. The learned Munsif did not trouble about any figures at all, but thought it sufficient to say that he was convinced that the debtor had paid many times more than the principal amount and then to pass a decree, declaring him absolved of all liability. This he could not legally do. 16. Since no plea of payment prior to the decree could be entertained and since no payment after the decree has been alleged, the accounting in the present case will be a simple matter and involve nothing more than working out the interest. The limit of an amount equal to the principal, although perhaps not applicable in this case in judging whether the old decree was liable to be re-opened, must be applied now, when a new decree is to be passed in accordance with the provisions of the Act. The circumstances now arising and the liability now to be imposed certainly attract the provisions of S. 30 (1) (a). But, in the place of a declaratory decree absolving the debtor of all liability, a new decree must be passed for the principal amount and such interest as may be found allowable and other consequential orders, as provided for in S. 36 (2), must also be made. As regards the form of the decree, useful guidance may be obtained from the decision in 49 C.W.N. 30 Jadu Nath Roy and Others Vs. Kshitish Chandra Acharji Choudhury and Another, AIR 1945 Cal 177 . For the reasons given above, the appeal must be allowed. The judgments and decrees of both the Courts below are set aside and the case remanded to the trial Court for disposal in accordance with law and in the light of the observations contained in this judgment. As the respondents have not resisted the appeal, no order is made as to the costs of this Court, but the appellant will have the costs of both the Courts below.