JUDGMENT 1. In 1912, Nibaran Chandra Ghose, father of the Appellants, borrowed a sum of Rs. 4,000 from Janardan Sen, father of Respondents Nos. 1 to 3, on a mortgage of 19 items of immovable property. Interest was payable at the rate of 12 per cent, per annum with annual rests. In 1925, a suit to enforce the mortgage was filed in which a claim was made for Rs. 17,000. A final decree by consent was passed on the 23rd of September, 1926. The terms of the decree which was for Rs. 18,000 were that if Rs. 12,000 were paid within the 15th April, 1927, the mortgagees would enter up full satisfaction, but if the said amount was not paid within the said time, then the decretal amount, namely, Rs. 18,000 would become payable in twelve instalments spread over a period of nine years and the decretal amount would carry interest at 1 per cent, per month. The sum of Rs. 12,000 was not paid within the 15th of April, 1927. A number of execution proceedings were taken. In the course of the second execution case, being Execution Case No. 111 of 1928, which was started sometime in 1928, one of the mortgagee decree-holders, namely, Motilal Sen, was appointed a Receiver on the 17jth of September, 1929. He took possession of the mortgaged properties as Receiver. In the course of the fifth execution, the mortgaged properties, were sold at a sale held by the executing Court on the 9th February, 1933. Items Nos. 1 to 6, 9 and 14 to 19, of the schedule to the mortgage instrument were purchased at the said sale by the decree-holders themselves. Some of those items consisted of undivided shares. After the sale had been confirmed they instituted a suit for partition with the other co-sharers in respect of the last-mentioned properties. We are told that the said partition suit is still pending, no allotment having been made yet. The other items of the mortgaged properties, namely, Items Nos. 7, 8 and 10 to 13, were purchased at the said sale by one Hemlata Devi, who is Respondent No. 6 in this appeal, for the sum of Rs. 1,000. The said lady even before the confirmation of the sale conveyed her rights by a kobala Ext. 1 to Bhuban Mohan Gupta, Respondent No. 5 in this appeal. 7, 8 and 10 to 13, were purchased at the said sale by one Hemlata Devi, who is Respondent No. 6 in this appeal, for the sum of Rs. 1,000. The said lady even before the confirmation of the sale conveyed her rights by a kobala Ext. 1 to Bhuban Mohan Gupta, Respondent No. 5 in this appeal. The sale in execution of the mortgage decree did not fetch a price adequate to satisfy the said decree. For the balance the mortgagee decree-holders obtained a decree for Rs. 5,000 or so under the provisions of Or. 34, r. 6 of the Civil Procedure Code. An execution in respect of this personal decree was pending up to the 23rd of April, 1940, when the said execution case was dismissed for default. It is the pendency of this execution case that attracts the provisions of the Bengal Money-Lenders Act to the mortgage suit. On the 25th of February, 1942, the suit in which the appeal arises was filed by the mortgagors, namely, the three sons of Nibaran Chandra Ghose, under sec. 36 of the Bengal Money-Lenders Act. The Plaintiffs who are the Appellants before us contended that all the three decrees, namely, the preliminary decree passed by consent, the final decree which was also passed by consent and the decree passed under Or. 34, r. 6 of the Code, should be re-opened. They further stated that Respondent No. 5, Bhuban Mohan Gupta who purported to purchase the items of property which we have mentioned above from Hemlata Devi, Respondent No. 6, and the latter were both the benamdars of the mortgagee decree-holders. They accordingly claimed restoration of possession not only in respect of the properties which had been purchased by the decree-holders themselves in their own names but also Items Nos. 7, 8 and 10 to 13 of the mortgage instrument which, according to them, had ostensibly been purchased by Hemlata Devi. In the plaint they stated that the amount actually advanced to their father in 1912 was not Rs. 4,000 but much less. They pleaded payments, namely, Rs. 218 before the institution of the mortgage suit and two further sums, namely, Rs. 25 and Rs. 5, were realised in execution proceedings. In paragraph 6 they say that the accounts of the Receiver had not been adjusted and they prayed for the adjustment of the same. 4,000 but much less. They pleaded payments, namely, Rs. 218 before the institution of the mortgage suit and two further sums, namely, Rs. 25 and Rs. 5, were realised in execution proceedings. In paragraph 6 they say that the accounts of the Receiver had not been adjusted and they prayed for the adjustment of the same. The learned Subordinate Judge following the decision in the case of Naresh Chandra Gupta v. Lal Mamud Bhuiya 46 C.W.N. 457 (1942), which Jus since been overruled by the Full Bench, did not re-open the preliminary and the final mortgage decrees but re-opened only the personal decree and for the purposes of ascertaining whether any new personal decree will have to he passed or not he directed an account to be taken respecting the amounts paid towards the mortgage-debt. In view of the fact that the Full Bench has held that all the decrees, the preliminary, the final and the personal decrees, will have to be re-opened in a case of the type which we have before us, the decree as made by the learned Subordinate Judge cannot stand. We accordingly hold that the Plaintiff-Appellants are entitled to the re-opening of all the three decrees, if they are otherwise entitled. 2. Mr. Sen Gupta for the Respondents, namely, the decree-holders, however, contends that the preliminary decree and the final decree which were passed by consent in this case, cannot be re-opened, because they were passed beyond 12 years of the institution of the suit in which this appeal arises in view of the provisions of sec. 36 (1), proviso (i) of the Bengal Money-Lenders Act. We cannot accept this contention. That proviso relates to adjustment or agreement between the parties which purports to close previous dealings and to create new obligations. It is admitted before us that the present case is not a case of adjustment, but the argument is that it comes within the proviso, for the foundation of the decrees which have been passed in this case is the agreement embodied in the petition of compromise. The argument comes to this; that although the consent decrees can be re-opened in these proceedings, the petition of compromise which is the foundation of the consent decrees cannot be touched, because that embodies the agreement between the parties which was entered into beyond 12 years of the suit. We cannot give effect to this contention. The argument comes to this; that although the consent decrees can be re-opened in these proceedings, the petition of compromise which is the foundation of the consent decrees cannot be touched, because that embodies the agreement between the parties which was entered into beyond 12 years of the suit. We cannot give effect to this contention. That agreement has no independent existence apart from the decrees. A consent decree is a thing which is quite different from an agreement. It is, as it has been said, "the formal result and expression of an agreement already arrived at between the parties to the proceedings embodied in an order of the Court." The fact of its being so expressed puts the parties in a different position from the position of those who have simply entered into an ordinary agreement. If a decree passed by consent is set aside, nothing remains. The agreement itself which was the foundation of the decree is wiped off by the same act. We accordingly hold that the said proviso, namely, proviso (i) is not applicable. 3. The learned Subordinate Judge held that neither Hemlata nor Bhuban Mohan Gupta was the benamdar of the decree-holders. That being so, the Appellants are not entitled to restoration of possession of items of property purchased by Hemlata Debi, namely, Items Nos. 7, 8 and 10 to 13 described in the mortgage bond. But the money that was paid at the execution sale for those properties must be taken into account in calculating the amount of the new decree, for, the said amount went towards part payment of the mortgagees' dues. 4. The new decree must be in terms of cl. (a) of sec. 30 of the Bengal Money-Lenders Act, that is to say, for twice the principal, namely, Rs. 8,000 less any amount which had been paid by the debtors or on their behalf or realised from them. To that must be added the costs of the original mortgage suit which is Rs. 1,374-10-3 pies. The sum of Rs. 1,000 which was paid for the purchase at the Court sale of Items Nos. 7, 8 and 10 to 13 by Hemlata Debi must, as it has already been said, be regarded as payment. It is admitted that Rs. To that must be added the costs of the original mortgage suit which is Rs. 1,374-10-3 pies. The sum of Rs. 1,000 which was paid for the purchase at the Court sale of Items Nos. 7, 8 and 10 to 13 by Hemlata Debi must, as it has already been said, be regarded as payment. It is admitted that Rs. 218 was paid before the institution of the suit on mortgage and in the plaint of the mortgage suit the mortgagees had given credit for that sum. Two further sums, namely, Rs. 25 and Rs. 5, were realised in the course of the execution. Therefore from the sum of Rs. 9,374-10-3 pies (Rs. 800 being twice the principal amount advanced--Rs. 1,374-10-3 pies being the cost of the mortgage suit) a sum of Rs. 1,248 has to be deducted. 5. There is a further question as to whether any other payments were made. It is admitted that the debtors-themselves made no other payments besides Rs. 218 and no further sum beyond Rs. 30 was realised from them by process of Court. It is, however, urged by Mr. Mookerjee appearing for the Appellants that further payments were made on their behalf by the Receiver. That is not their allegation in the plaint they filed in the suit. All that they say in the plaint is that the Receiver has not adjusted his accounts. In a suit or proceedings under sec. 36 the only relevant point would be in making the calculations for the new decree the amount of payment. If the Receiver's accounts have not been adjusted, the Appellants may pursue their remedy in other proceedings. If they had alleged in their plaint that the Receiver had paid towards the mortgage dues their money which he Had collected from the properties in his charge before the mortgage sale, we would have been inclined to make a remand but as no such case was made in the plaint but another case was pleaded, and as we have already stated that that case was a misconceived one, so far as these proceedings are concerned, we cannot at this stage allow the Appellants to make a new case, namely, that the Receiver had, in fact, from out of the collections that he made from the time that he took possession up to the date of the mortgage sale made payments towards the mortgage debt. In lieu of the decree passed by the Court below we pass a new final decree for the sum of Rs. 8,126-10-3 pies. We direct Respondents Nos. 1 to 3 to restore possession forthwith to the Appellants of the properties which they had purchased at the mortgage sale held on the 9th February, 1933, namely, items Nos. 1 to 6, 9 and 14 to 19 of the properties mentioned in the schedule to the mortgage bond. 6. We are informed that after their purchase Defendants Nos. 1 to 3 have instituted a suit for partition in respect of the undivided shares of those properties which they had purchased at the mortgage sale and a final decree has not been passed. If a final decree is passed in that suit the rights of the Appellants before us would later on have to be adjusted in the light of the decision given in the case of Sm. Suhashini Poddar v. Sree Nath Chakravarty 49 C.W.N. 769 (1945), but we make it quite clear that Respondents Nos. 1 to 3 must deliver also the undivided shares in the properties which they had purchased and which are the subject-matter of the aforesaid partition suit. 7. There only remains the question of instalments. After taking all facts into consideration we direct that the decretal amount of Rs. 8,126-10-3 pies be paid for the first twelve years at the rate of Rs. 600 a year and the balance in the thirteenth year. The first instalment is to be paid within the month of Kartick, 1354 B.S. and the remaining instalments within Kartick of the succeeding years. In default of payment of any one instalment the decree-holders shall be put into possession of the properties and the amount for which the decree-holders had purchased the said properties on the 9th of February, 1933, shall be set off against the new decree. Each party, namely, the Appellants and those Respondents as are represented by Mr. Sen Gupta, will bear their own costs throughout. This is with regard to the appeal in so far as if relates to the Appellant and the Respondents Nos. 1 to 3. Respondent No. 5 was only interested in the question of benami. His vendor was found not to be the benamdar of Respondents Nos. 1 to 3 by the learned Subordinate Judge and that finding was not challenged before us. 1 to 3. Respondent No. 5 was only interested in the question of benami. His vendor was found not to be the benamdar of Respondents Nos. 1 to 3 by the learned Subordinate Judge and that finding was not challenged before us. The appeal, so far as it is directed against the said Respondent, must be dismissed with costs,--hearing-fee being assessed at two gold mohurs.