JUDGMENT B.K. Mukherjea, J. - This appeal is on behalf of the judgment-debtor, and is directed against an order of Mr. A.G. Chatterjee, Subordinate Judge Second Court Howrah, dated 28th September 1943, made on an application presented by the appellant under Ss. 47 and 151, Civil P.C. 2. To appreciate the points in controversy between the parties, it would be necessary to state certain earlier facts: On 15th April 1943, (sic) the appellant Debabrata Mukherjee took an advance of Rs. 3000 from two persons, viz., Bhulidhone Mukherji and Bejoy Gopal Mukherjee, on a mortgage of his one-sixth share in the joint family property. The mortgage was in the form of a conditional sale carrying interest at the rate of 12 per cent. per annum. Some time afterwards, Debabrata created a second mortgage in respect of the same property in favour of one Susil Kumar Mukherjee. On 11th December 1910, Bhulidhone and Bejoy Gopal instituted a suit against Debabrata in the Court of the second Subordinate Judge, Howrah, to enforce their mortgage bond, and the second mortgagee was made a party defendant in the suit. On 25th June 1941, a preliminary decree was passed under O. 34, R. 2, Civil P.C., read with S. 34(1)(a)(i) & (ii), Bengal Money-lenders Act, and the principal money together with interest and cost aggregating to Rs. 5440 was directed to be paid in sis annual instalments. The first instalment was for Rs. 500 only and was to be paid within November 1941, while the other five instalments were for Rs. 988 each and were payable within November every year for five successive years. On 29th November 1941, the judgment-debtor paid Rs. 250 out of the first instalment, and made an application for extension of time to pay the balance. This application was registered as Miscellaneous case No. 94 of 1941. On 31st January 1942, the Court made an order granting extension of time till 30th June 1942. Further extension of time was granted by subsequent orders of the Court, and eventually, the balance of the first instalment was paid on 29th July 1942. On 28th November 1942, when the time for paying the second instalment was heating its end, the judgment-debtor applied for extension of time to pay the second instalment. Further extension of time was granted by subsequent orders of the Court, and eventually, the balance of the first instalment was paid on 29th July 1942. On 28th November 1942, when the time for paying the second instalment was heating its end, the judgment-debtor applied for extension of time to pay the second instalment. It was stated in the application that he had entered into a contract with one Abani Mukherjee for sale of the mortgaged property with the exception of the bastu portion, for a consideration of Rs. 8000 and that the conveyance was to be executed on or before 30th January 1943. This, it was said, would enable the judgment-debtor to pay the entire mortgage money all at once without the necessity of paying it in instalments. Upon this the Court made the following order on 30th November 1942: Judgment-debtor wants to pay entire amount. I am prepared to extend time up to 1st February 1943, for payment of the whole amount. If entire amount be not paid, the second instalment shall be held to be in default and judgment-debtor shall not be entitled to save one kist only by payment of the kist. 3. It may be stated here that neither the parties nor the Court appreciated correctly the provision of law as laid down in the provisos to S. 34(1)(a)(ii), Bengal Money-lenders Act. As has been held by a Division Bench of this Court in the case of Pramatha Nath Sanyal Vs. Sailesh Chandra Chowdhury, AIR 1943 Cal 214 , when a default has occurred in the payment of one instalment payable under a mortgage decree passed under S. 34 (1)(a)(i) , Bengal Money-lenders Act, the Court has no power under the first proviso to S. 34(1)(a)(ii) to grant an extension of time in respect of the particular instalment in default. The first proviso only empowers the Court to allow extension of time for payment of the whole amount which on such default becomes payable by the operation of S. 34(1)(a)(ii) of the Act. On such default occurring, the decree-holder becomes immediately entitled to apply for a final, decree, but proviso 2 allows the judgment-debtor to prevent the passing of such decree by paying into Court only the instalment in default. On such default occurring, the decree-holder becomes immediately entitled to apply for a final, decree, but proviso 2 allows the judgment-debtor to prevent the passing of such decree by paying into Court only the instalment in default. The position, therefore, is that the first part of the order recorded by the Court on 30th November 1942, by which extension of time was allowed for payment of the whole money uptil 1st February 1943, was perfectly right, but the last portion which purported to take away from the judgment-debtor the right given to him by proviso 2 mentioned above was erroneous. 4. It appears that the judgment-debtor made bona fide efforts to pay the entire amount due under the mortgage decree. On 1st February 1943, he paid Rs. 1000 and another sum of Rs. 1000 was paid only seven days later on 8th February 1943. On 16th February 1943, a further sum of Rs. 500 was paid, and on that day a petition was put in on behalf of the judgment-debtor and the decree-holders jointly wherein it was stated that the balance of the decretal dues would be paid within one week from the date by the judgment-debtor, failing which the final decree might be passed; and the judgment-debtor further agreed to waive any notice that might be necessary under the Bengal Moneylenders Act prior to the making of the decree final. Upon this the Court made the following order: Defendant files a petition praying for further extension of one week's time to pay the balance due. The plaintiff has no objection to the defendant's prayer. Time is extended to 24th February 1943, for making payments. On 23rd February 1943, the original decree-holders assigned their decree to the present respondent, Satish Chandra Banerjee, and Satish was substituted in the place of his assignors on that very day. Unfortunately, the judgment-debtor could not pay the balance of the decretal dues within the specified time, and on 26th March 1943, the final decree was passed. On 27th April 1943, the assignee decree-holder put the decree for foreclosure into execution. Objections were raised by the judgment-debtor to delivery of possession of the property, but this petition, it seems, was rejected on the ground that symbolical possession was already taken. Eventually, the judgment-debtor put in an application before the executing Court under Ss. On 27th April 1943, the assignee decree-holder put the decree for foreclosure into execution. Objections were raised by the judgment-debtor to delivery of possession of the property, but this petition, it seems, was rejected on the ground that symbolical possession was already taken. Eventually, the judgment-debtor put in an application before the executing Court under Ss. 47 and 151, Civil P.C. out of which the present appeal has arisen. 5. The application, if we may say so, was the last and desperate attempt on the part of the judgment-debtor to stop the execution of the final decree for foreclosure. It seems, however, that the judgment-debtor was not properly advised in the matter. The application is long and verbose, and contains many allegations which are either irrelevant or of such a character as could not be entertained by an executing Court. The applicant was also not sure of the relief which he wanted. At one place, it was alleged that no final decree ought to have been drawn up; in another place, it was stated that the decree was pro tanto discharged; and in any event, the judgment-debtor was entitled to a refund of the amounts paid. In the prayer clause, however, the only prayer made was that the application for delivery of possession of the property might be dismissed. We have no hesitation in saying that the judgment-debtor, or rather his legal adviser, thoroughly misconceived the remedy, and the executing Court was powerless to give any of the reliefs claimed. An executing Court can certainly refuse to execute the decree when on the face of it, the decree was passed by a Court which had no jurisdiction either pecuniary, territorial or personal, but there was not the slightest allegation of any such ground in the petition which was presented by the judgment-debtor. 6. The only substantial point in favour of the judgment-debtor is that on 26th March 1943 when the final decree was drawn up, the instalments already due under the decree had been long paid off by him. No final decree, therefore, could be passed in view of the provision of proviso 2 to S. 31(1)(a)(ii). 6. The only substantial point in favour of the judgment-debtor is that on 26th March 1943 when the final decree was drawn up, the instalments already due under the decree had been long paid off by him. No final decree, therefore, could be passed in view of the provision of proviso 2 to S. 31(1)(a)(ii). The Court indeed could not grant extension of time for the purpose of paying any particular instalment, but, as pointed out above, it was open to the judgment-debtor to prevent the passing of the final decree by paying the defaulted instalment only before the final decree was actually passed. This fact was stated only incidentally in para. 8 of the petition, and curiously enough, it was not put forward as a legal objection to the validity of the decree. As we have said already, the judgment-debtor misconceived his remedy and erred altogether in approaching the executing Court which was powerless to give him any relief. He could have filed an appeal against the final decree, or if there was an apparent error on the part of the Court in overlooking proviso 2 to S. 34(1)(a)(ii) , Bengal Money-lenders Act when the final decree was passed, this could have been brought to the notice of the Court which made the decree by an application for review, or even by an application under S. 151, Civil P.C. 7. In the present case, we are informed that the executing Court is the very Court which passed the decree, and the application purports to be one under S. 151, Civil P.C. and contains the allegation appropriate to the purpose mentioned above. We think that in the interests of justice, an opportunity should be given to the appellant to have the matter considered by the Subordinate Judge not as an executing Court, but as the Court which passed the decree. We hold, therefore, that the order of dismissal made by the Subordinate Judge under S. 47, Civil P.C., should stand, but it would stand on the ground that it was beyond the competency of the executing Court to enquire into these matters. We direct the Subordinate Judge to entertain the petition as the Court passing the decree, and consider only one point, viz., whether in drawing up the final decree in the mortgage suit, the Court overlooked proviso 2 to S. 34(1)(a)(ii), Bengal Money-lenders Act. We direct the Subordinate Judge to entertain the petition as the Court passing the decree, and consider only one point, viz., whether in drawing up the final decree in the mortgage suit, the Court overlooked proviso 2 to S. 34(1)(a)(ii), Bengal Money-lenders Act. If the Court decides in favour of the petitioner, it will set aside the final decree, and the further proceedings will be regulated by the provisions of the Bengal Money-lenders Act. If the Court finds against the petitioner, the order of dismissal will stand. 8. The result, therefore is that this appeal is dismissed but the application filed by the appellant is sent back to be heard and considered by the Subordinate Judge as the Court passing the decree in accordance with the directions given above. We make no order as to costs in this Court. Ormond, J. 9. I agree.