JUDGMENT Ormond, J. - On the suit being called on for hearing Counsel for the Plaintiff, Mr. Bose, has asked for an adjournment on the ground that his attorney has been unable to get into touch with his client owing to the recent disturbed conditions. He maintains the suit has to be heard on evidence and that he is not ready with his evidence. Mr. S.B. Sinha for the Defendant No. 1 has opposed any adjournment. He contends that be is entitled to have the suit dismissed in limine on a preliminary point, that the suit as framed is not maintainable since the plaint discloses no cause of action. Normally, as with many similar applications for adjournments in other suits which have been made to this Court since the Court has sat this term, I should have granted the adjournment asked for in view of the unusual and very severe difficulties which have undoubtedly been encountered by clients' legal advisers in arranging for the attendance of witnesses by reason of the recent highly disturbed conditions in Calcutta. I should have accepted Counsel's statement without further formality and without going into the case at all. But in this case in view of the preliminary objection I have intimated that I will hear arguments and decide the preliminary point before deciding whether the suit should be adjourned or not. If the Defendant succeeds on this preliminary point it will be fruitless to allow further prolongation of the proceedings in the suit and the weight of any ground put forward for adjournment becomes immaterial. This suit is one brought under the Bengal Money-Lenders Act, 1940. Relief is sought for under sec. 36 of that Act. For the purpose of this preliminary objection I shall assume that all the allegations of fact made in the plaint are such as could be established by the Plaintiff if he were to go into evidence and are correct. 2. The Plaintiff's case as made in the plaint is as follows. The loan in suit was made as long ago as 1921. In respect of that loan later on, the first Defendant filed a suit in the year 1933, being Suit No. 69 of 1933, in this High Court. He obtained a decree by consent against the present Plaintiff in this High Court on January 23, 1933. The loan in suit was made as long ago as 1921. In respect of that loan later on, the first Defendant filed a suit in the year 1933, being Suit No. 69 of 1933, in this High Court. He obtained a decree by consent against the present Plaintiff in this High Court on January 23, 1933. Thereafter the present first Defendant applied for execution of that decree by its transmission to the Court of the Subordinate Judge of Pabna. Certain execution proceedings, being Execution Case No. 70 of 1935, started by the present first Defendant then took place at Pabna. Other persons who were judgment-creditors of the present Plaintiff as a result of other proceedings claimed a share by rateable distribution in the fruits of these execution proceedings thus pursued by the present first Defendant at Pabna. As a result, as his share after such rateable distribution, the present first Defendant collected a sum of Rs. 902-8-0. From the word "thereafter " in para. 9 of the plaint used in reference to different execution proceedings started by a different person, one Heeralal Ghose, in 1935, whatever the date may have been when the present first Defendant obtained payment of the said sum of Rs. 902-8-0, this was at least before the institution of Execution Cases No. 79 of 1935 and No. 137 of 1935 started by the other persons referred to in paragraphs 9 and 10 of the plaint. The date must have been, therefore, before the end of 1935. 3. Various other judgment-creditors of the Plaintiff then also pursued execution proceedings against the Plaintiff at Pabna. Money Execution Case No. 79 of 1935 was started by Heeralal Ghose, as stated in para. 9 of the plaint. Money Execution Case No. 137 of 1935 was started by one Ashu Roy, as stated in para. 10 of the plaint. Money Execution Cases No. 5 and No. 6 of 1937 were started by one Hafizunnessa Chowdhurani, as stated in para. 11. Under these various proceedings various properties of the Plaintiff were sold by auction through the Pabna Court, and the present first Defendant became the auction-purchaser. As appears from the plaint, in the money execution case started by the present first Defendant himself when certain properties of the present Plaintiff were sold by auction through the Pabna Court, the present first Defendant had in that instance also become the auction-purchaser. As appears from the plaint, in the money execution case started by the present first Defendant himself when certain properties of the present Plaintiff were sold by auction through the Pabna Court, the present first Defendant had in that instance also become the auction-purchaser. In that case the properties concerned were one-fourth share belonging to the present Plaintiff in eight revenue-paying estates, being Towzi Nos. 300, 282. 1900, 1763, 1769, 1770, 1772 and 1776. In the Money Execution Cases Nos. 79 and 137 of 1935 and Nos. 5 and 6 of 1937 the properties concerned were one-fourth share belonging to the Plaintiff in a different revenue-paying estate, being Towzi No. 306/4. This last-mentioned property, of which sale through the Court at Pabna came to be made in these last-mentioned execution cases, did not come thus to be sold at the instance of the present first Defendant as a result of his own execution proceedings instituted by him, Money Execution Case No. 70 of 1935: and as far as appears from the history of the matter as stated in the plaint would not have been sold at all but for the subsequent other execution proceedings instituted by the other persons I have mentioned. The present first Defendant nevertheless claimed a share by way of rateable distribution in the fruits of the sales effected in these other execution proceedings subsequently started at the instance of those other persons. 4. Now, the material date laid down in the Bengal Money-Lenders Act as the date on which the Act brings down a curtain of immunity behind which the Court is not to look for the re-opening of any decrees is January 1, 1939. Generally speaking, matters of litigation completed before that date are not to be looked into, and the Act contains certain particular provisions in respect of particular matters for testing whether a matter is to be treated as having been concluded before the 1st January, 1939 or not. 5. The term "suit to which this Act applies " is denned in sec. 2 (22). 5. The term "suit to which this Act applies " is denned in sec. 2 (22). As there stated, it means "any suit or proceeding instituted or filed on or after the 1st day of January, 1939, or pending on that date and includes a proceeding in execution" [for the recovery of a loan or for the enforcement of any agreement or for the redemption of any security as stated in subparagraphs (a), (b) and (c)]. It, therefore, includes a proceeding in execution. But whatever be the particular suit or proceeding, if it was not filed on or after 1st January, 1939, then it must at least have been pending on that date. By sec. 36 in the last proviso appearing at the end of sub-sec. (1), [i.e., immediately after the printing of sub-sec. (1) (e)], an express limitation is placed on the exercise of the powers of the Court in respect of the reopening of decrees. This proviso is worded as follows: Provided that in the exercise of these powers the Court shall not (1) (2) 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 day of January, 1939. 6. So that two things are essential: (1) that the decree is one in a suit to which the Act applies, and (2) in addition to this, one which was not fully satisfied by January 1, 1939. As to the interpretation of these words "not fully satisfied," the explanation appearing at the end of sub-sec. (1) has a bearing on the meaning to be applied to this phrase in construing the Act. That explanation is as follows: "A decree shall not, for the purposes of this section, be deemed to have been fully satisfied so long as there remains undisposed of an application by the decree-holder for possession of property purchased by him in execution of the decree." The scheme of the Act is thus not that every decree unsatisfied on January 1, 1939, may be re-opened, but for a decree to be one which may be re-opened that it must first be a decree in a suit to which the Act applies, and only then, if it was unsatisfied on January 1, 1939, may it be re-opened. The explanation is no more than a rule of interpretation to be applied in deciding whether a particular decree is to be treated under the Act as one which was unsatisfied on January 1, 1939, or not. The intended meaning of the explanation must, I think, be to make an enlargement of what might in the absence or the explanation have been taken to be the meaning of a "not fully satisfied decree." Thus its effect is only this: that even where a decree might otherwise be regarded as a fully satisfied decree, yet if there was an application by the decree-holder for possession of the property purchased by him in execution of the decree undisposed of, then even such a decree must for purposes of the Act be regarded as a " not fully satisfied decree." It seems hardly necessary to point out that a decree might nevertheless clearly be a "not fully satisfied decree " even where no application for possession by a decree-holder was ever made or thought of. 7. Now in respect of all the litigation to which I have earlier referred there is nothing in the plaint suggested as remaining pending on January 1, 1939, except for the one and only item mentioned in para, 12. That is an application for possession of the property auction purchased in Execution Case No. 137 of 1935- I may here set out the exact wording of para. 12. It is as follows: "The application for possession of the property auction-purchased by Defendant, J. Chaudhuri in the benami of his wife in the aforesaid Execution Case No. 137 of 1935 remained undisposed of till 8th April, 1939." It will be seen that there is no definite averment in the plaint that Suit No. 69 of 1933 in this High Court was a suit to which this Act applies; or that either that suit itself or any execution proceedings in that suit itself were pending on 1st January, 1939. 8. It is clear that the suit itself had been decreed by January 23, 1933. The suit itself, therefore, clearly was not pending on January 1, 1939. The only execution proceedings referred to in the plaint as at the direct instance of the present first Defendant in Suit No. 69 of 1933 are those mentioned in para. 8. 8. It is clear that the suit itself had been decreed by January 23, 1933. The suit itself, therefore, clearly was not pending on January 1, 1939. The only execution proceedings referred to in the plaint as at the direct instance of the present first Defendant in Suit No. 69 of 1933 are those mentioned in para. 8. It is clear, as I have already indicated, that these had been completed by 1935. No part of these execution proceedings was, therefore, pending on January 1, 1939, nor are these proceedings anywhere pleaded as being pending on January 1, 1939. 9. The mere fact that other execution proceedings started subsequently by. another party in another suit, to which the present first Defendant was not a party, may have been pending on January 1, 1939, in which the present first Defendant may have successfully agitated a claim for rateable distribution in his capacity of a separate decree-holder in his Suit No. 69 of 1933, does not, in my view, prolong the pendency of the execution proceedings in Suit No. 69 of 1933 so as to make that suit one which can be classified as a suit to which this Act applies within the meaning of the Act. No authority has been cited to me for this purpose, and I am unable to see any general considerations of reasoning, on the construction of the Act giving such a result. 10. From this conclusion on this point alone it follows that no cause of action can be said to arise under the plaint. At the risk of repetition I may observe that even if the decree in Suit No. 69 of 1933 was one which was not fully satisfied by January 1, 1939, this will not make a cause of action in the plaint, once it is decided that the suit is not one to which the Act applies. 11. At the risk of repetition I may observe that even if the decree in Suit No. 69 of 1933 was one which was not fully satisfied by January 1, 1939, this will not make a cause of action in the plaint, once it is decided that the suit is not one to which the Act applies. 11. Taking, as I do, the view that execution proceedings in Suit No. 69 of 1933 are distinct from execution proceedings started by other Plaintiffs in other suits, even if the Plaintiff in Suit No. 69 of 1933 chooses to avail himself of a right to rateable distribution in the fruits of those other persons' execution proceedings, it follows also that it is immaterial for the present purposes whether the explanation could properly be invoked for prolongation within the meaning of the Act of the pendency or unsatisfied state of those other execution proceedings (even after the decree in those other suits might without the explanation otherwise have been said to be fully satisfied) by reason of any judgment-purchaser in any of those other suits having an application for possession of his auction-purchased property pending or undisposed of or not. 12. It is curious also to note that the plaint contains no clear allegation to the effect that the decree in Suit No. 69 of 1933 was not fully satisfied. The decree is said in para. 7 to have been for Rs. 7,500. It is pleaded in paragraph 8, 9, 10 and 11 that the present first Defendant collected payment of sums amounting to a total of Rs. 2,431-8-0. That is all that is said. There is no definite statement that no further satisfaction was received beyond these sums: or, in general terms, that the decree was not fully satisfied by 1st January, 1939. Inspite of the absence of any specific allegation, I hold, however, for the purpose of this preliminary objection that these statements of fact taken together do amount to an allegation that the decree in Suit No. 69 of 1933 was not fully satisfied. As indicated, however, this makes no difference to the result arrived at, when once the vital question has been decided that the suit is not one to which this Act applies. 13. There being no cause of action disclosed in the plaint, I, therefore, hold that this preliminary objection raised on behalf of the first Defendant succeeds. As indicated, however, this makes no difference to the result arrived at, when once the vital question has been decided that the suit is not one to which this Act applies. 13. There being no cause of action disclosed in the plaint, I, therefore, hold that this preliminary objection raised on behalf of the first Defendant succeeds. 14. Apart from what I have said, there are also certain further considerations which lead to the same conclusion. To appreciate these it is necessary for me to relate certain events in this litigation. After the suit had been filed a certain application was by the Plaintiff for the appointment of a receiver or for an injunction. This application was refused, a short judgment being delivered by Sen, J., which being short I may quote in full: No ground has been made either for the appointment of a receiver or for the issue of an injunction. On the materials before me it seems that no execution ease is pending now nor was there any execution pending on the 1st January, 1939, respect of the suit of 1933 out of which the present proceedings have arisen. The decree which is sought to be re-opened, is therefore not a decree in a suit ' to which this Act applies which was not fully satisfied by the 1st day of January, 1939 [See sec. 36 (1), proviso (ii)]. There is, therefore, grave doubt as to whether the suit is maintainable. In these circumstances this application must be dismissed with costs. 15. It will be seen that, a view was even at that stage already being expressed in the judgment on this interlocutory matter that the suit was not one to which this Act applied. It is true, however, that that view so expressed was based only on the materials then before the learned Judge. Thereafter an application was made by the Plaintiff for amendment of the plaint. In the petition filed on that occasion it was stated as follows in paragraph 4: Without an averment of the aforesaid fact (that is to say, the fact that a Proceeding in Execution Suit No. 69 of 1933 was pending on the 1st January, 1939, and still pending) the plaint is liable to be rejected as showing no cause of action on the very face of it. The matter was dealt with by Gentle, J., who rejected the application for amendment of the plaint in delivering a judgment of which the following is a material extract: This is a suit under the Bengal Money-Lenders Act and it is common ground that the plaint discloses no cause of action. 16. It is to be noted that in dealing with the point whether any cause of action has been disclosed in the plaint in its amended form, Gentle, J., does not specifically adjudicate on this point since, as is clear from the opening sentence of the judgment, Counsel before him had conceded the point. Now when the matter comes before me, a different Counsel had been engaged who was not then appearing. Counsel now appearing before me said that he conceded that the point was conceded by Counsel then appearing before Gentle, J., but he now urges that as such concession was on a point of law only, he was not bound by such previous concession by a previous Counsel. While it has always been my understanding that a mere concession on a point of law by Counsel is not in itself binding either on Counsel or his client, and that it is open to him to retract it or resile from it, (and indeed Mr. Sinha does not dispute this proposition) there is nevertheless a well-established principle of law that a litigant cannot through his Counsel adopt an inconsistent position. When, as here, as a result of a concession made, a judgment is delivered, it seems to me that further questions arise which may, in particular cases, make it the duty of a Court not to allow a change of front on such a point by a Counsel. It is clear from the judgment that the whole basis of the decision on that application was the position conceded on both sides that the plaint disclosed no cause of action. Had this point been fought by Counsel for the Plaintiff, then it is clear that this would have been the principal matter which would have been decided in that judgment. Had this point been fought by Counsel for the Plaintiff, then it is clear that this would have been the principal matter which would have been decided in that judgment. That judgment is an appealable judgment, and had the Plaintiff desired to upset the basis of the judgment in order to be free to show that the plaint did show a cause of action, it would have been then open to him to appeal, and had he not appealed, he would have been met with the force of the judgment against him. I find it difficult to adopt a position in a case where the whole foundation of the judgment had been conceded by Counsel for the Plaintiff which makes the judgment any less binding upon him. It is true that the judgment on that preliminary point disposes, it may be stated, of the whole case, but had the Plaintiff desired to change his front and to argue that the plaint did disclose a cause of action, then it seems to me that he should have taken some steps or other, either to have the judgment vacated or at least to notify the Defendant that he proposed to question the validity of the judgment and to resile from the concession on the point of law made. While that judgment stands, I find it difficult to see how this Court can allow the Plaintiff to act as if it had been wrongly decided. For authorities on this aspect of the matter it is enough for me to cite references only to the following authorities: The matter is referred to in Sarkar's Law of Evidence, 7th Edition, at p. 1127 in the commentary on sec. 115 of the Indian Evidence Act under the heading "Estoppel by inconsistent position." 17. The classical passage quoted from Bigelow is as follows: If parties on court were permitted to assume inconsistent positions to the trial of their causes, the usefulness of the Courts of Justice would, in most cases, be paralysed, the coercive process of the law available only between those who consented to its exercise, could be set at naught by all. But the rights of all men, honest and dishonest, are in the keeping of the Courts, and consistency of proceedings is therefore required of all those who come or are brought before them. But the rights of all men, honest and dishonest, are in the keeping of the Courts, and consistency of proceedings is therefore required of all those who come or are brought before them. It may accordingly be laid down as a broad proposition that one who without mistake induced by the Opposite Party, has taken a particular position deliberately in the course of a litigation, must act consistently with it; one cannot play fast and loose. 18. Several of the well-known authorities including certain English cases are there cited. As it has been frequently said- " One cannot blow hot and cold." 19. The present case is, in my view, a sufficiently good example of somewhat peculiar circumstances in which the Court cannot but apply these propositions; and is bound to disallow the Plaintiff from making a complete change of front in the conduct of his case. For this reason also, though this is not necessary in view of my decision on the main point, I come to the same conclusion that the suit must now be dismissed with costs. 20. In this view of the matter I also refuse the adjournment which would be merely infructuous on the view that I take of the matter in general. Since the parties were sued separately and they have appeared by separate Counsel, they will be entitled to separate sets of costs.