JUDGMENT Mukherjea, J. - Both these connected appeals are directed against a new decree made after re-opening of an old mortgage decree under sec. 36 of the Bengal Money-Lenders The judgment-debtors are the Appellants in Appeal from Original Decree No. 73 of 1942, while the other appeal, which is Appeal from Original Decree No. 122 of 1942, has been preferred by the Plaintiffs decree-holders. The facts material for our present purposes are not in controversy and may be stated as follows:-- On July 21st, 1902, Annada Kumar Roy Chowdhury, the predecessor of Defendant No. 1, borrowed a sum of Rs. 15,000 from the father of the Plaintiffs on a mortgage of certain parties, and it was stipulated in the mortgage bond that the amount advanced would carry interest at the rate of 9 per cent. per annum with yearly rests. A sum of Rs. 9.600 was paid by the mortgagor towards his dues on the mortgage in different instalments between July 21st, 1902, and August 10th, 1915, when a renewed mortgage bond was executed by the debtor for a sum of Rs. 28,500. There was no fresh advance on this mortgage and it was recited in the mortgage bond that accounts being taken it was found that a sum of Rs. 30,423-11-0 was still due on the first mortgage; and the mortgagee ha remitted a sum of Rs. 1,923-11-0 the renewed bond was executed for the balance of Rs. 28,500. Certain additional properties were kept as security for payment of this money and it was further stated in paragraph 7 of the mortgage instrument that the previous mortgage would remain in force. The stipulation for interest in the second mortgage was exactly the same as in the first. After the second mortgage was executed the mortgagor paid several sums of money to the creditor from time to time aggregating to Rs. 10,291 and on April 12th, 1928, a third mortgage was executed by the debtor for a consideration of Rs. 65,000. Here again there was no fresh advance and the recitals on the mortgage bond show that the amount due by the debtor had come up to Rs. 65,568 as odd after deducting the sum of Rs. 10,291 paid by him, and the creditor having granted a remission of Rs. 578 annas odd the third mortgage was executed for the consideration of Rs. 65,000. 65,568 as odd after deducting the sum of Rs. 10,291 paid by him, and the creditor having granted a remission of Rs. 578 annas odd the third mortgage was executed for the consideration of Rs. 65,000. Here also the stipulation was to pay interest at the rate of 9 per cent, per annum with yearly rests and both the previous mortgages were kept alive. 2. Admittedly no payment was made by the mortgagor after the execution of the third mortgage: and on February 15th, 1932, the mortgagee brought a suit in the Court of the Subordinate Judge of Barisal for recovery of a sum of Rs. 99,073 on the basis of the third mortgage bond. A preliminary decree was passed in that suit on May 7th, 1934, and on March 25th, 1935, the decree was made final. The decree-holder put the decree into execution in Title Execution Case No. 10 of 1936, and a sum of Rs. 4.600, which was lying in the Collectorate to the credit of the mortgagor as the surplus sale proceeds of one of the mortgaged properties, sold for arrears of revenue, was realised in course of this execution proceedings. The mortgaged properties were then put up to sale and they were purchased by the decree-holder for a sum of Rs. 1.31.623. There was a proceeding started by the judgment-debtor for setting aside the sale under Or. 21. r. 90 of the CPC and pending this proceeding the Bengal Money-Lenders Act came into force. 3. On September 11th, 1940, the judgment-debtor presented an application for re-opening of the decree under sec. 36 (6) (a) (i) of the Bengal Money-Lenders Act. The decree-holder filed objections and the Court on hearing the parties held that the decree was liable to be reopened. It was directed that the third mortgage bond should be re-opened as it was within twelve years from the date of the suit as contemplated by proviso (i) to sec. 36 (1) of the Bengal Money-Lenders Act, and accounts should be taken on the basis of the second mortgage--the amount of loan being taken to be Rs. 28.500 as stated in that instrument. The Court refused to re-open the second mortgage inasmuch as it was beyond twelve years from the date of the mortgage suit. On the basis of this decision a new preliminary decree was passed on November 11th, 1941. 28.500 as stated in that instrument. The Court refused to re-open the second mortgage inasmuch as it was beyond twelve years from the date of the mortgage suit. On the basis of this decision a new preliminary decree was passed on November 11th, 1941. It is against this decree that these two appeals have been taken to this Court, one of them being filed by the judgment-debtors and the other by the decree-holders. 4. Appeal from Original Decree No. 73 of 1942. 5. We will take up first the appeal preferred by the judgment-debtors, which is Appeal from Original Decree No. 73 of 1942. 6. Mr. Panchanan Ghose, who appears in support of this appeal, has argued before us that the Court below in re-opening the decree should have re-opened the second mortgage bond also and directed accounts to be taken on the basis of the first mortgage, inasmuch as proviso (i) to sec. 36 (1) of the Bengal Money-Lenders Act is not attracted to a case like this where the renewed mortgage bond did not create a new obligation in supersession of the obligation created by the previous mortgage. 7. Now under sec. 36 (1) of the Bengal Money-Lenders Act, the Court, if it has reason to believe that the exercise of one or more of the powers under that section will give relief to the borrowers, shall, inter alia, re-open any transaction and take an account between the parties; and it can exercise these powers notwithstanding any agreement purporting to close previous dealings and to create new obligations. Upon this general provision an exception has been engrafted by proviso (i), which lays down that no adjustment or agreement, purporting to close previous dealings and create new obligations could be touched by the Court, if it was entered into at a date more than twelve years from the date of the suit by the parties or any person through whom they claim. The language used by the legislature undoubtedly contemplates a case where the adjustment or agreement extinguishes the previous obligation and replace it by another or substituted obligation, within the meaning of sec. 62 of the Indian Contract Act. The whole contention, therefore, centres round the point whether the second mortgage in the present case rescinded or discharged the obligation created by the first and created a new obligation, which would bring it within proviso (i) to sec. 62 of the Indian Contract Act. The whole contention, therefore, centres round the point whether the second mortgage in the present case rescinded or discharged the obligation created by the first and created a new obligation, which would bring it within proviso (i) to sec. 36 (1) of the Bengal Money-Lenders Act. 8. It seems to us to be settled law that whether a new mortgage bond is to be taken in lieu of and in supersession of an old one depends entirely upon the intention of the parties and the intention is to be gathered from the facts and circumstances of each case. It was held by a Division Bench of this Court in Goluknath Misser v. Lalla Prem Lal I. L. R. 3 Cal. 307 (1877) that when a later mortgage is created for the purpose of giving fresh security in consequence of the original debt having increased by arrears of unpaid interest, it cannot normally be taken to be a substitution for the earlier mortgage within the meaning of sec. 62 of the Indian Contract Act. The same view was taken in Gopal Chander Sreemany v. Herembo Chunder Holdar I. L. R. 16 Cal. 525 (1889). In that case a later mortgage recited an earlier mortgage and a further loan advanced by the creditor and contained the following clause: In order to liquidate the said debt and on account of other necessities of ours we three brothers do this day mortgage to you whatever right, title and interest we three brothers have in the said two properties and take the loan of Rs. 3,400; out of this money we have also liquidated the said debt. 9. The earlier mortgage was never paid off, and it remained uncancelled in the hands of the mortgagee. It was held that the later transaction did not amount to payment of the debt, but was in reality a further advance and a fresh security for the old debt and the fresh advance, the old debt remaining unchanged. It was further held that even if the original debt had been satisfied by the later document, that fact would not necessarily destroy the security, the presumption being that unless an intention to the contrary was shown, the mortgagee intended to keep the security alive for his own benefit. 10. It was further held that even if the original debt had been satisfied by the later document, that fact would not necessarily destroy the security, the presumption being that unless an intention to the contrary was shown, the mortgagee intended to keep the security alive for his own benefit. 10. It is quite true that in both these case the debtor had created an intermediate mortgage in favour of a third party, and the question for determination by the Court was whether the earlier mortgagee would lose his priority as against the subsequent encumbrancer by taking a fresh mortgage for the original loan after the intermediate incumbrancer was created. 11. Mr. Gupta argues that a distinction has got to be drawn between keeping alive a debt and keeping alive the security for the debt; and even if the debt is discharged the security may be kept alive to be used as a shield against an intermediate security holder. Conceding that this distinction exists, it does not in our opinion follow that in case a renewed mortgage is taken for an old loan it necessarily extinguishes the old debt and creates a new one. In both the cases mentioned above the learned Judges held definitely that in the circumstances of those cases there was no substitution of a new obligation for the old within the meaning of sec. 62 of the Indian Contract Act. This means that the earlier obligation was kept intact as between the contracting parties themselves and not merely for protecting the interest of the mortgagee against an intermediate encumbrancer. In Gopal Chunder Sreemany v. Herembo Chunder Holdar I. L. R. 16 Cal. 525 (1889) referred to above, not only fresh advance was taken and the stipulation as to interest was varied but the later mortgage bond contained a recital of the payment of the original debt. In spite of these recitals it was held by this Court that the original debt was not extinguished. It was alternatively found that even if the original debt was superseded, the security was not destroyed but remained in force. It goes without saying that when a renewed mortgage bond is taken the mortgagee is always presumed, unless the contrary is shown, to keep alive the original security which might he availed of against third parties. We agree with Mr. It goes without saying that when a renewed mortgage bond is taken the mortgagee is always presumed, unless the contrary is shown, to keep alive the original security which might he availed of against third parties. We agree with Mr. Gupta that the presumption which arises in such circumstances can be put down expressly in the mortgage deed itself out of abundant caution. By itself a clause like this does not necessarily lead to the conclusion that not merely the security but the old obligation also was kept alive. But at the same time it cannot be contended that when a clause like this occurs in a mortgage bond the intention was only to keep alive the security and not the debt. As has been said already the whole question is one of fact, and whether or not the original agreement was discharged by a new agreement, as is contemplated by sec. 62 of the Indian Contract Act, must be determined on a consideration of the substance of the matter and not merely the form. [Vide Kshetranath Sikdar v. Messrs. Harsukdas Bal Kissendas 31 C. W. N. 703 (1926)]. 12. In the case before us, we find that the consideration for the second mortgage was the amount due as principal and unpaid interest on the previous bond less a slight remission allowed by the mortgagee. The rate of interest in the new bond remained the same, and as the debt even after deducting the payments made by the borrower had amounted nearly to double of the original amount, the creditor insisted on adding certain fresh properties as security in the second mortgage bond. The document is described to be a renewed mortgage bond; and not only there was an express provision in the document that the first mortgage was to remain in force the first mortgage was not cancelled or returned to the mortgagor, but was kept with the mortgagee and filed along with other documents in the mortgage suit. From these circumstances it seems to us that a conclusion can fairly be drawn that there was no intention of the parties that the original obligation should be extinguished and merged in a new obligation and that the obligation under the second instrument was not in supersession of but only in addition to, or modification of the obligation created by the first document. 13. 13. This being the position we are clearly of opinion that the present case is not hit by proviso (i) to sec. 36 (1) of the Bengal Money-Lenders Act, and the Court in giving relief under the Bengal Money-Lenders Act is competent to reopen the second mortgage bond and direct accounts to be taken on the basis of the original loan. We only desire to observe that proviso (i) is only an exception to the general rule that is embodied in the section which empowers the Court to re-open all agreements and adjustments, which purport to close previous dealings, but which in reality are mere, devices to swell the amount of the original debt by converting arrears of interest into principal, and must be construed strictly. 14. The result is that this appeal is allowed, the judgment and decree made by the Court below are set aside and the matter is sent back in order that a new decree may be passed in accordance with the directions given above on the basis of the first mortgage bond, which was executed on July 21st, 1902. 15. The Appellants will be entitled to the costs of this appeal. Hearing-fee, five gold mohurs. 16. Appeal from Original Decree No. 122 of 1942. 17. We now come to the other appeal (Appeal from Original Decree No. 122 of 1942) which has been preferred by the creditors. 18. Mr. Gupta with his usual fairness represented to us at the outset that he would not press the appeal, but later on when the hearing of the other appeal was concluded he stated that His client had instructed him specifically not to abandon the appeal and therefore he would argue it for what it was worth. 19. The point taken in this appeal is that the Court below was not competent to touch even the last or the third mortgage which was executed more than twelve years from the date of the presentation of the application by the debtor under sec. 36 (6) (a) (i) of the Bengal Money-Lenders Act. It is contended that proviso (i) to sec. 56 (1) of the Bengal Money-Lenders Act would directly govern the case and the Court was not entitled to re-open the decree at all. In our opinion this contention cannot succeed. 20. 36 (6) (a) (i) of the Bengal Money-Lenders Act. It is contended that proviso (i) to sec. 56 (1) of the Bengal Money-Lenders Act would directly govern the case and the Court was not entitled to re-open the decree at all. In our opinion this contention cannot succeed. 20. In the first place we have held already in the other appeal that the renewed mortgage bond in the present case did not create any new obligation in supersession of the previous obligation and consequently would not attract the operation of the proviso at all. In the second place we think that even if the third mortgage created a new obligation and closed the previous transactions, it was admittedly within twelve years from the date of the mortgage suit. 21. The Appellant's argument is that although it was within twelve years from the date of the mortgage suit, it was beyond twelve years from the date of the presentation of the application under sec. 36 (6) (a) (i) of the Bengal Money-Lenders Act, and we are invited to hold that the expression "date of the suit" occurring in proviso (i) to sec. 36 (1) refers not merely to a suit instituted under that section but applies to an application also when it is made in course of execution proceedings. We are unable to accept this argument as sound. The word "suit" in the proviso means either a suit to which the Act applies and in connection with which relief is claimed by the borrower under sec. 36 (6) of the Bengal Money-Lenders Act, or it means a suit brought by the borrower as contemplated by sec. 36 (1) itself. In Nrisinha Chandra Pal Choudhury v. Sm. Kanaklata Dasi 46 C. W. N. 457 (1942) it was held that the date of suit in proviso (i) of cl. (1) of sec. 36 of the Bengal Money-Lenders Act refers to the date when the suit contemplated by sec. 36, cl. (1) is brought and not the date of any application by the borrower for relief under the Bengal Money-Lenders Act. The same view was taken in Baidyanath Dutta v. Mritunjoy Mukherjee 48 C. W. N. 504 (1942). (1) of sec. 36 of the Bengal Money-Lenders Act refers to the date when the suit contemplated by sec. 36, cl. (1) is brought and not the date of any application by the borrower for relief under the Bengal Money-Lenders Act. The same view was taken in Baidyanath Dutta v. Mritunjoy Mukherjee 48 C. W. N. 504 (1942). It was definitely held in the latter decision that the expression "suit" cannot possibly refer to the petition execution of the decree made in the suit in course of which the relief is claimed for, but must refer to the date of the institution of the suit it where the decree under execution was passed. On the last point a difference of opinion was expressed by Roxburgh and Akram, JJ., in Jagabandhu De v. Akshoy Kumar Sil 46 C. W. N. 906 (1942) and it was held by the learned Judges that when is claimed in execution proceeding the date suit mentioned in proviso (i) to sec. 36, cl. (1) of the Bengal Money-Lenders Act means the date of starting the execution proceeding and not the original suit in which the decree was passed. Assuming that this decision is correct, it would not be of any assistance to the present decree-holders, for the third mortgage in the sent case was admittedly within twelve from the date of the commencement of the execution proceeding. 22. Mr. Gupta frankly conceded that the decided cases are all against him and having regard to the language of the section we have no hesitation in holding that these decisions are Correct A relief can be obtained under the Bengal Money-Lenders Act either by a suit under sec. 36 (1) or by an application in an execution proceeding or by way of a review of the decree passed in the suit. The distinction between a suit and an application is maintained in the section itself and we cannot say that the legislature intended that the word "suit" in the proviso should include an application also. The result is that the decision on this point as made by the Court below seems to us to be right, and we dismiss this appeal with costs Hearing-fee, five gold mohurs. Blank, J. I agree.