JUDGMENT 1. The five deities, who are the respondents before us, are the family deities of the Roys of Bonpash in the District of Burdwan. At all material times the shebaits of the deities, namely, the Roys were large in number. It is the usage in the family that one of them, usually the senior-most member, is the managing shebait, whose duty is to manage the debutter estate and to look after the deb sheba. It is the common case of the parties that the managing shebait for the time being could borrow money for the necessities of the deities and to execute necessary documents in respect of those borrowings. It is also admitted that Adwaita Charan Roy, father of Aghore Nath Roy, was the de facto managing shebait from 1317 to 1333 B.S. (=1910 to 1926) and the de jure managing shebait from 1333 till his death in Chaitra 1336 B.S. (March-April 1930). On his death, Satish Chandra Roy became the managing shebait and continued to be the managing shebait till his death in 1347 (1940). 2. While Adwaita Charan Roy was the managing shebait he as such executed a hatchita in favour of one Nanitosh Chakravarty on 3lst Baisakh 1335 B.S. (April 1928). On its face the hatchita shows that on that date and on sub-sequent dates noted in the said hatchita he borrowed various sums of money from Nanitosh Chakravarty. The last entry in the hatchita is dated Falgoon 1335 (March 1929). The total sum as shown in the hatchita to have been borrowed comes up to Rs. 3801. 3. On 1st Kartic 1338 B.S. (October 1931) there was an adjustment of account between Nanitosh Chakravarty and Satish Chandra Roy, the then managing shebait, and a sum of Rs. 5068-8-10 was admitted by the latter to be due to Nanitosh on the basis of the original hatchita which had been executed by Adwaita Charan Roy. For the said sum Satish Chandra Roy, as managing shebait, gave a renewed hatchita to Nanitosh on that date. Nanitosh died in the same year shortly after the execution of this renewed hatchita. The first two appellants in both the appeals, namely Aditya Charan Chakravarty and Dhirendra Nath Chakrabarty, are his sons. After the death of their father they instituted in the year 1932 a suit against the said deities represented by the managing shebait, Satish Chandra Roy, to recover Rs. The first two appellants in both the appeals, namely Aditya Charan Chakravarty and Dhirendra Nath Chakrabarty, are his sons. After the death of their father they instituted in the year 1932 a suit against the said deities represented by the managing shebait, Satish Chandra Roy, to recover Rs. 5401 odd on the basis of the said hatchita. The remaining shebaits were made pro forma defendants. That suit was numbered M.S. 261 of 1932. It was decreed on compromise on 23rd June 1933 for the sum of Rs. 5800 which was made payable in 16 yearly instalments of Rs. 362-8. There was a clause in the compromise decree that in default of payment of any one instalment the whole or the balance of the decretal amount, as the case may be, would become due and payable. There being default, the decree was put into execution on three occasions. In the first two executions some of the items of property described in schedules Ka and Kha respectively of the application which is the subject-matter of the appeal were put up to sale and were purchased by the decree-holders themselves in the years 1936 and 1939 respectively. The decree-holders would hereafter be called the Chakrabartys. They are the first two appellants in both the appeals. At the third execution, some of the items described in Sch. Ga were purchased by Oramba Sundary Dassi in 1940. She is the wife of Aghore Nath Roy. She and her husband are appellants 3 and 4 respectively in both the appeals. On 28th August 1941, the deities represented by some of the shebaits made an application for review under the provisions of S. 36(6)(a)(ii) , Bengal Money-lenders Act, 1940 (hereafter called the Act). The principal opposite parties were the Chakravartys, Oramba Sundary and her husband, Aghore Nath Roy. The remaining shebaits were made pro forma opposite parties. The prayers were for passing a new instalment decree in accordance with the Act after reopening the said compromise decree, and for restoration of possession to the deities of items of property prescribed in Schs. Ka, Kha and Ga. The learned Subordinate Judge has reopened the said compromise decree and has passed a new instalment decree in terms of the Act, and has ordered restoration of the properties to the deities. First Appeal No. 214 of 1942 is directed against this decree of the Lower Court. 4. Ka, Kha and Ga. The learned Subordinate Judge has reopened the said compromise decree and has passed a new instalment decree in terms of the Act, and has ordered restoration of the properties to the deities. First Appeal No. 214 of 1942 is directed against this decree of the Lower Court. 4. Although the same questions arise in First Appeal No. 231 of 1943, the facts are slightly different. Some of the shebaits brought a suit, being Title Suit No. 110 of 1928 against the then managing shebait Adwaita Charan Roy for his removal and for other reliefs. In that suit Ramjanaki Roy, a co-shebait was appointed receiver. With the permission of the Court he purported to borrow from the same Nanitosh Chakravarty three sums of money on 11th Aswin, 15th Aswin and 30th pous 1336 on three promissory notes. After the death of their father the Chakravartys, namely Aditya and Dhirendra Nath Chakravarty, brought Money Suit No. 262 of 1932 against the deities to recover those loans. A compromise instalment decree was passed on the same day as in the other suit, on similar terms. There being default in the payment of instalments the Chakravartys executed the decree thrice. At the first two execution sales they themselves purchased the remaining items of schedules Ka and Kha respectively in 1936 and 1939 and at the third execution the same Oramba Sundary purchased in 1940 the remaining items of schedule Ga. By a kobala, Ex. A dated 26th July 1940, the Chakravartys purported to convey to Oramba Sundary the properties of schedules Ka and Kha as also many other properties for an alleged consideration of Rs. 20,000. A similar application for review as in the other case under the provisions of S. 36(6)(a)(ii) was made on behalf of the deities against the same set of persons with like prayers. This application was heard along with the other application and was dealt with by the learned Subordinate Judge in the same judgment. He made a new decree on the same terms as in the other case Appeal No. 231 of 1943 filed by the Chakravartys, Oramba Sundary and her husband Aghore Nath Roy is directed against the said decree. 5. In both the appeals the deities have filed cross-objections. Those objections relate to the number and amount of instalments and to costs. 6. 5. In both the appeals the deities have filed cross-objections. Those objections relate to the number and amount of instalments and to costs. 6. The appellants do not contend that the original compromise decrees could not be reopened. Nor do they attack the correctness of the amount of the new decrees. They do not say that the number and amount of instalments given in the new decrees are improper. They attack only those portions of the new decrees which have directed restoration of possession of the properties of schedules Ka, Kha and Ga to the deities. 7. The applications made under S. 36(6)(a)(ii) are not happily worded. They are verbose to a degree. In them the loans shown in the hatchitas and those covered by the promissory notes are challenged as fictitious, but are admitted to be real loans only for the purpose of these proceedings. The case vaguely made in the said applications and more clearly presented at the hearing in the lower Court for the purpose of supporting the prayer for restoration of the properties of schedules Ka, Kha and Ga is as follows: (1) that Aghore Nath Roy was the real decree-holder, the Chakravartys being his benamidars in the matter of the decrees., (2) that Aghore Nath Roy, the real decree-holder, was the real purchaser of the properties of schedules Ka and Kha at the execution sales, the Chakravartys being his benamidars, (3) that the kobala Ex. A represented a fictitious transaction, which passed no title to Oramba Sundary, (4) that Aghore Nath Roy, the real decree-holder, had purchased the properties of schedule Ga at the execution sales in the benami of his wife, Oramba Sundary. 8. Four points have been urged by the learned advocate appearing for the appellants in support of the appeals, namely (1) that in a proceeding under S. 36, Bengal Money-lenders Act, 1940, the question as to whether the person whose name appears in the decree sought to be re-opened is benamidar for another person cannot be gone into; (2) that assuming that that question can be gone into in such proceedings the evidence does not establish that the Chakravartys were benamidars of Aghore Nath Roy, either in respect of the decrees or in respect of their purchase of schedules Ka and Kha properties at the execution sales; (3) that the evidence does not establish that the conveyance Ex. A represented a fictitious transaction; (4) that it has not been established that Oramba Sundary is a benamidar of Aghore Nath Roy. We cannot accept any one of these contentions of the learned advocate of the appellants. 9. A proceeding under S. 36 of Act, be it a suit or an application by a borrower, can be of two types, namely, (1) either in respect of a loan on which a judgment has not been obtained, or (2) in respect of a loan in respect of which a decree had already been passed. In the first case a borrower need only make the ostensible lender a party defendant or an opposite party as the case may be. There is no legal bar to his making another person as an additional defendant or opposite party on the allegation that that other person is the person who had really advanced the loan in benami. The Court would not ordinarily go into the question of benami so raised as being unnecessary on the ground that the order passed against the person, whom the borrower called the ostensible lender, would be effective and binding on the real lender, who. ever he may be, even if the loan had been advanced in benami, on the basis of the decision of the Judicial Committee of the Privy Council in Gur Narayan v. Sheo Lal Singh, 46 I.A. 1 at p. 9 : (A.I.R. (5) 1918 P.C. 140). In the second type of cases those proceedings may have been commenced and continued (a) either before or (b) after the sale of the borrower's property in execution of the original decree. In case (a) as in the first type of cases a third person other than the ostensible judgment creditor need not be added as a party defendant, where the case of the judgment-debtor is that that third person is the person who had made the loan on which the decree had been passed, and if he is added as a party, the question of benami so raised would not be gone into on the same considerations as in the first type. In case (b), that is to say, where the proceedings under S. 36 had been commenced by the judgment-debtor either after the execution sale or where during the course of those proceedings the execution sale had taken place there is the possibility of a third party in the person of the auction-purchaser coming into the picture. By third party we mean a person other than one who was a party to the suit for recovery of the loan. 10. Where the decree is re-opened and a new instalment decree in terms of the Act is passed S. 36(2)(c) entitles the judgment debtor to have restoration of possession of his property which had been purchased by the decree-holder in execution of the re-opened decree and cl. (e) of that sub-section requires the handing back of the previously restored property to the decree-holder purchaser on the failure of the judgment-debtor to pay any of the instalments given by the new decree. This, in our judgment, indicates the intention of the Legislature, and that intention is that restoration of possession to the judgment-debtor is to be made in order to enable him to have the means to pay the instalments of the new decree. Clause (c) carries by necessary implication the proposition that if the purchase had been made not by the decree-holder but bona fide by a third party the restoration of possession to the judgment-debtor is not to be made. As the intention of the Legislature is to afford the means to the judgment-debtor to pay instalments of the new decree in a certain case, every contrivance by which the judgment-debtor is sought to be deprived of those means must be ripped open and the contrivance rendered nugatory. It would follow that a question as to whether a parson other than the decree-holder, who had purchased at the execution sale, is a benamidar for the decree-holder in the matter of the purchase can be raised and it would be the duty of the Court in a proceeding under S.36 to decide the question. The judgment-debtor would be entitled to make the ostensible purchaser a party to that proceeding so that the adjudication may be made in his presence and binding on him. The form in which the order for restoration of possession may be passed would not cause any difficulty of real substance. The judgment-debtor would be entitled to make the ostensible purchaser a party to that proceeding so that the adjudication may be made in his presence and binding on him. The form in which the order for restoration of possession may be passed would not cause any difficulty of real substance. In form it may be an order directing the decree-holder on record to restore possession. If the decree-holder does not do so, the order for restoration of possession can be executed effectively, for the binding adjudication that the ostensible purchaser being the decree-holder's benamidar being there, he, the ostensible auction-purchaser, would not be able to resist successfully the delivery of possession to the judgment-debtor. His resistance, if offered, would be taken to be on behalf of the decree-holder against whom the order had been made. 11. Clause (b) of S. 36(2) indicates that the Legislature had in mind contrivances which the decree-holder may forge to defeat restoration of possession to the judgment-debtor and has said by necessary implication that in proceedings under S. 36 of the Act the question whether such a contrivance has been forged by the decree-holder or not is to be gone into, and if the Court finds that such a contrivance had been forged it would defeat it by ordering restoration of possession to the judgment-debtor. The case contemplated in that clause, namely cl. (b), is where the decree-holder who had purchased the property at the sale held in execution of the reopened decree had thereafter dealt with the property by private treaty. The person to whom the property is so transferred by the decree-holder would not be affected if he was a bona fide purchaser, and so in such a case the judgment-debtor would not be entitled to restoration of possession. The implication is that if the transfer to him, even assuming it to be a real transfer, had been made by the decree-holder auction-purchaser with the intent to defeat the claim of the judgment-debtor for restoration of possession and if the purchaser from the decree-holder had either known of that intent of the decree-holder auction-purchaser at or before the transfer to him or had been a party to the design of the decree-holder, restoration of possession to the judgment-debtor is still to be ordered on the ground that the former had not bona fide acquired the property or rights thereon. Where that is the case of the judgment-debtor such a purchaser has to be made a party to the proceedings under S. 36, so that a binding adjudication may be made in his presence and the observation which we have made in respect of the other type of cases would equally apply. 12. The case where a person advances a loan, which comes within the Act, in the name of a benamidar, causes the benamidar to sue for its recovery and to get a decree and then at the execution of that decree, subsequently re-opened in proceedings under S. 36, purchases the property himself, is in our opinion a contrivance of the same type which we have noticed above, though it may be that in many instances it would be more difficult for the Court to unravel it. The order for restoration of possession to the judgment-debtor may be directed against the decree-holder on record but for the reasons we have already stated it would be an effective order and binding on the real lender for whom the decree-holder on record was found to be a benamidar in the presence of the real lender. To take an illustration A advanced a loan on a bond to B, and then assigned it to C in name only. C as the apparent assignee sues upon it, gets a decree, which is subsequently re-opened in a proceeding by the judgment-debtor under S. 36 but at the sale held in execution of that decree A himself purchases the judgment-debtor's property. We fail to see why the Court in a proceeding under S. 36 cannot in the presence of the auction-purchaser, A, go into the question, and if satisfied that those were the facts, cannot restore possession to the judgment-debtor. The order for restoration of possession may have to be passed, as in the other cases, in form against the decree-holder on record, namely C, but the form would not matter for it would be an effective order. The fact that the new decree has to be passed in favour of the person whose name appears as the decree-holder in the re-opened decree, or that on the failure of the judgment-debtor to pay any instalment payable under the new decree the possession is to be restored back to the decree-holder on record in terms of cl. The fact that the new decree has to be passed in favour of the person whose name appears as the decree-holder in the re-opened decree, or that on the failure of the judgment-debtor to pay any instalment payable under the new decree the possession is to be restored back to the decree-holder on record in terms of cl. (e) of S. 36(2) does not prevent us from taking the view we have indicated. The question of restoration of possession to the judgment-debtor in our opinion stands on an entirely different footing and the fact that the new decree has to be passed in favour of the person whose name appears as the decree-holder in the re-opened decree has not such compelling weight which would induce us to take a different view; and we have already pointed out that though in form the order for restoration of possession to the judgment-debtor may be directed against the decree-holder on record and that on default of payment of any instalment payable under the new decree the order in form may be on the judgment-debtor to give back possession to the decree-holder on record, those facts would not create insuperable difficulties. We accordingly hold that in a proceeding under S. 36 of the Act the Court can go into the question as to whether the decree-holder on record is a benamidar for another person brought on the record of that proceeding by the judgment-debtor for the purpose of deciding whether the judgment-debtor is entitled to restoration of possession of his property sold in execution of the re-opened decree. This conclusion leads us to the consideration of the other three points raised by the appellant's advocate. We will take them up together. 13. Both parties led evidence bearing on these points by the appellant's advocate and so the question of onus is not material. (Their Lordships then discussed the evidence on both sides on points (ii) to (iv) raised in the appeal and came to the conclusion that Ex. A was a fictitious transaction and no consideration was paid to the Chakravartis under it, that the Chakravartis were benamidars of Aghore Nath Roy and also that Oramba Sundary was a benamidar of her husband Aghore Nath Roy in respect of the purchase of the properties. The judgment then proceeds as follows:) 14. A was a fictitious transaction and no consideration was paid to the Chakravartis under it, that the Chakravartis were benamidars of Aghore Nath Roy and also that Oramba Sundary was a benamidar of her husband Aghore Nath Roy in respect of the purchase of the properties. The judgment then proceeds as follows:) 14. The result is that both the appeals are dismissed with costs, hearing fee in F.A. No. 214 of 1942 according to scale and Rs. 85 in F.A. No. 231 of 1943. 15. The cross-objections are pressed only on the question of period for which instalments are to be given. The instalments are to be five equal ones payable each year in Magh, the first being payable in Magh 1355. Possession of which restoration was stayed may now be delivered forthwith to the judgment-debtor and on failure to pay any instalment the decree-holder will be put back into possession. Each party will pay its own costs in the cross-objection. 16. The cross-objection in F.A. No. 231 of 1943 will be treated as filed by respondent 1 only.