Judgement Appeal (No. 70 of 1947) from an order of the High Court passed in its civil revisional jurisdiction (August 13, 1943) which set aside an order of the Subordinate Judge of Burdwan (July 18, 1942) rejecting the petition of the respondents Nos. 1 to 10 under ss. 30 and 36, sub-s. 6 (a) (ii), of the Bengal Money Lenders Act, 1940 (hereinafter referred to as " the " Act "), for reopening a mortgage decree dated October 5, 1931, passed against the respondents in mortgage suit No. 198 of 1930. The following facts are taken from the judgment of the Judicial Committee. The questions argued on this appeal were first, a preliminary objection taken by the respondents that this appeal was incompetent; secondly, a preliminary objection taken by the appellant that the revision application to the Law Rep. 76 Ind. App. 131 ( 1948- 1949) Joy Chand Lal Babu V. Kamalaksha Chaudhury 67 High Court from which this appeal was brought was incompetent. Apart from those preliminary objections the only two matters urged against the order of the High Court appealed from were first, that the loan to which the application of the respondents related was a " commercial loan" to which the Act did not apply; and secondly, that the suit in which the application of the respondents was made was not a " suit to which this Act applies " as defined by the Act, and consequently that the respondents were not entitled to any relief under the Act. On January 6, 1925, the respondents or their predecessors in title executed a registered karbarnama, or bond for obtaining loans for business, in favour of the appellant for securing loans up to a sum of Rs. 25,000. [The material provisions of that document are set out in the judgment of the Board.] The appellant, on August 15, 1930, instituted a mortgage suit, No. 198 of 1930, claiming a sum of Rs. 40,600 and asking for the enforcement of the mortgage security. On October 5, 1931, a compromise decree was passed in the suit for a total sum of Rs. 40,600 and asking for the enforcement of the mortgage security. On October 5, 1931, a compromise decree was passed in the suit for a total sum of Rs. 45,825-8-0 with interest, payable in sixteen instalments, and it was provided that on failure to pay one instalment the whole of the outstanding sum would be due and recoverable with interest at 10 ½ per cent, per annum by sale of the mortgaged properties, and in case of deficiency by sale of the other properties of the mortgagors and also from the persons of the mortgagors by executing the decree. Default was made in payment of the first instalment under the compromise decree, and on August 20, 1932, application was made by the appellant for execution of the decree. In succeeding years further applications in execution were made, and all the properties subject to the decree were eventually sold and purchased by the appellant. The last sale in execution was confirmed in July, 1938, and on an application for possession made by the appellant on September 20, 1938, the court ordered possession to be delivered on November I, 1938, but owing to failure on the part of the execution clerk to return the writ to the court no order noting the fact of delivery of possession and finally disposing of the application for possession was entered on the records of the court until June 3, 1940. Meantime, namely, on November 29, 1938, there was an application by a third party under r. 100, or. 21, which was not disposed of until April, 1939. On August 30, 1941, respondents Nos. 1 to 10 filed miscellaneous application No. 127 of 1941 in the court of the Subordinate Judge at Burdwan asking for relief under ss. 30 and 36 of the Act. The Act was passed on August 1, 1940, and the following provisions of it were relevant to this appeal “Section 2. On August 30, 1941, respondents Nos. 1 to 10 filed miscellaneous application No. 127 of 1941 in the court of the Subordinate Judge at Burdwan asking for relief under ss. 30 and 36 of the Act. The Act was passed on August 1, 1940, and the following provisions of it were relevant to this appeal “Section 2. In this Act, unless there is anything repugnant " in the subject or context— " (4) ‘commercial loan means a loan advanced to any M person to be used by such person solely for the purpose " of any business or concern relating to trade, commerce, "industry, mining, planting, insurance, transport, banking "or entertainment, or to the occupation of wharfinger, " warehouseman or contractor or any other venture of a " mercantile nature, whether as proprietor or principal M or agent or guarantor ; " (22) suit to which this Act applies 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 — " (a) for the recovery of a loan advanced before or " after the commencement of this Act ; " (b) for the enforcement of any agreement entered " into before or after the commencement of this Act, " whether by way of settlement of account or otherwise, " or of any security so taken, in respect of any loan " advanced whether before or after the commencement " of this Act; or Law Rep. 76 Ind. App. 131 ( 1948- 1949) Joy Chand Lal Babu V. Kamalaksha Chaudhury 68 " (c) for the redemption of any security given before " or after the commencement of this Act in respect of " any loan advanced whether before or after the commencement of this Act." " Section 30. 76 Ind. App. 131 ( 1948- 1949) Joy Chand Lal Babu V. Kamalaksha Chaudhury 68 " (c) for the redemption of any security given before " or after the commencement of this Act in respect of " any loan advanced whether before or after the commencement of this Act." " Section 30. Notwithstanding anything contained in any " law for the time being in force, or in any agreement — " (i) no borrower shall be liable to pay after the " commencement of this Act— " (a) any sum in respect of principal and interest which " together with any amount already paid or included " in any decree in respect of a loan exceeds twice the " principal of the original loan, " (b) on account of interest outstanding on the date " up to which such liability is computed, a sum greater " than the principal outstanding on such date, " (c) interest at a rate per annum exceeding in the " case of— " (i) unsecured loans, ten per centum simple, " (ii) secured loans, eight per centum simple, “whether such loan was advanced or such amount was " paid, or such decree was passed or such interest accrued " before or after the commencement of this Act; " (2.) no borrower shall after the commencement of this " Act, be deemed to have been liable to pay before the date " of such commencement in respect of interest paid before " such date or included in a decree passed before such " date, interest at rates per annum exceeding those specified " in sub-cl. (c) of cl. (1.) ; " (3.) a lender shall be entitled to institute a suit at any " time after the commencement of this Act in respect of " a transaction to which either or both of the preceding " clauses applies or apply." “Section 36. (c) of cl. (1.) ; " (3.) a lender shall be entitled to institute a suit at any " time after the commencement of this Act in respect of " a transaction to which either or both of the preceding " clauses applies or apply." “Section 36. (1.) Notwithstanding anything contained in " any law for the time being in force, if in any suit to which " this Act applies, or in any suit brought by a borrower for " relief under this section whether heard ex parte or otherwise, " the court has reason to believe that the exercise of one or " more of the powers under this section will give relief to " the borrower, it shall exercise all or any of the following " powers as it may consider appropriate, . . . ." Then followed a list of powers which might be exercised by the court, with qualifications on the execution of such powers, including a power to reopen any transaction and take account between the parties, and a power to release the borrower from all liability in excess of the limits specified in ell. 1 and 2 of s. 30. For the purposes of this appeal it was not necessary to consider those powers in detail. Section 40, sub-s. 5, of the Act provided that in any suit or proceeding the burden of proving that a loan was a commercial loan should be on the money-lender who advanced the loan. The application was heard by the Subordinate Judge of Burdwan, who gave judgment on July 18, 1942. He held that the loan made by the appellant to the respondents or their predecessors was a commercial loan within the meaning of the Act, and that such loan therefore did not come within the terms of the Act. Accordingly, he dismissed the application. However, he went on to consider the question whether the suit in which the application was made was a suit to which the Act applied within the definition contained in s. 2, sub-s. 22, of the Act, and came to the conclusion that it was. His view was that as no order for delivery of possession was recorded till June, 1940, and as the proceeding for Law Rep. 76 Ind. App. His view was that as no order for delivery of possession was recorded till June, 1940, and as the proceeding for Law Rep. 76 Ind. App. 131 ( 1948- 1949) Joy Chand Lal Babu V. Kamalaksha Chaudhury delivery of possession was a continuation of the application for execution, it followed that a proceeding in execution was pending on January 1, 939. From the order of the learned Subordinate Judge an application was made in revision to the High Court at Calcutta, and that application was heard on November 18, 1942. The learned judges held, disagreeing with the learned Subordinate Judge, that the loan was not a commercial loan. They agreed with the learned Subordinate Judge in thinking that the suit was one to which the Act applied, basing their opinion largely on the fact that the application under r. 100, Or. 21, was outstanding on January I, 1939. In the result, they made the rule absolute, set aside the order of the Subordinate Judge and sent the case back to him in order that the decree might be reopened in accordance with the directions given by the court. No objection to those directions was raised before the Board. 1949. Jan. 26, 27, 31; Feb. 1. Khambatta K.C. and B. Sen, for the respondents Nos. 1 to 10, took a preliminary objection to the competency of the appeal. The Bengal Money Lenders Act only provides for an appeal from the decision of the court reopening the transaction in specific circumstances s. 5, sub-s. 2, and s. 38, sub-s. 3. Except for the right of appeal given in those two sections there is no right of appeal given in the other sections of the Act, and it is not in dispute that the right of appeal to the High Court in this case from the order of the Subordinate Judge under s. 36 was by way of revision under s. 115 of the Code of Civil Procedure. There is a conflict of judicial opinion in India on the point whether an order made in revisional jurisdiction under s. 115 of the Code is an order passed on appeal within the meaning of cl. (a) of s. 109 of the Code of Civil Procedure. The High Court of Calcutta has held that it is Secretary of State for India in Council v. British India Steam Navigation Co. (( 1911) 13 Cal. (a) of s. 109 of the Code of Civil Procedure. The High Court of Calcutta has held that it is Secretary of State for India in Council v. British India Steam Navigation Co. (( 1911) 13 Cal. L. J. 90.), which was followed in Harish Chandra Acharjee v. Nawab Bahadur of Moorshidabad (( 1911) 13 Cal. L. J. 688.). Those two decisions have been followed since in Calcutta. The contrary view—that an order of the High Court passed in revision under s. 115 of the Code does not fall within s. 109 (a)—was held in Suraj Singh v. Phul Kumari (( 1925) I. L. R. 48 A. 226, 228.), where it was said that “there is a substantial” difference between the powers of this court when exercised in appeal and when exercised in revisional jurisdiction"; in Krishna Chandra Deb v. Raja Rajendra Narayan Bhanj (( 1936) I. L. R. 15 Pat. 659, 661.), Adaikappa Chettiar v. Ramaraja Thevar (I. L. R. [ 1944] Mad. 372.) and Rukmangal Prasad, Lala v. Durga, Mst. (( 1945) I. L. R. 21 Luck . 43.). This is not a case where there is such a question of law of general public importance that it falls under sub-s. (c) of s. 109 ; and if that is so, then this appeal is incompetent as wrongly granted under the Code. Pringle K.C. and Umrigar for the appellant. The record before the Board contains the order admitting the appeal, but not the certificate declaring the case a fit one for appeal. That, of course, would be under s. 109 (c) of the Code, and we took it that it was so, but it would appear from the record that the application for leave to appeal was based on s. 109 (a). It is difficult to see how the Board can deal with this matter in the absence of the certificate of the High Court. It is submitted, however, that if it was in a form that the case was a fit subject of appeal, that is enough Webb v. MacPherson (( 1903) L. R. 30 I. A. 238, 228.). [The Board intimated that the appeal should proceed.] Pringle K.C. Three points arise on the appeal. First, it is submitted that the High Court had no jurisdiction to interfere in revision under s. 115 of the Code with the order of the Subordinate Judge. [The Board intimated that the appeal should proceed.] Pringle K.C. Three points arise on the appeal. First, it is submitted that the High Court had no jurisdiction to interfere in revision under s. 115 of the Code with the order of the Subordinate Judge. There was no right of appeal, and the case could only go to the High Court, if at all, under s. 115. It does not lie in this case under s. 115 because none of the conditions (a), (b) or (c) of s. 115 has been satisfied in this case Rajah Amir Hassan Khan v. Sheo Baksh Singh (( 1884) L. R. 11 I. A. 237.) ; Balakrishna Udayar v. Vasudeva Aiyar (( 1917) L.R. 44 I. A. 261, 267.) ; Lala Atma Ram v. Lala Beni Prasad (( 1935) L. R. 62 I. A. 257.). The High Court, on the facts of this case, had no jurisdiction to deal with the matter in revision. The second point is that, quite Law Rep. 76 Ind. App. 131 ( 1948- 1949) Joy Chand Lal Babu V. Kamalaksha Chaudhury 70 apart from any question of jurisdiction, this was a “commercial loan” and, therefore, one to which the Act does not apply. Inferences from documents are questions of fact, and that this was a commercial loan is an inference of fact from the recital in the bond executed by the borrowers. The third point is whether the decree in the mortgage suit is caught by the Act; whether the mortgage suit is one to which the Act applies depends on whether there is an execution proceeding of a certain kind still alive at January 1, 1939. Both courts below were against the appellant on this point. On the facts of this case, where the possession was ordered to be delivered by the court on November 1, 1938, the execution application was fully satisfied by January 1, 1939. There is no statutory provision requiring the court to make any further order noting the fact of delivery of possession; that is simply a matter of practice, and in any event, here the court officer had made a mistake. The proceeding under or. 21, r. 100, is of no effect in this case. There is no statutory provision requiring the court to make any further order noting the fact of delivery of possession; that is simply a matter of practice, and in any event, here the court officer had made a mistake. The proceeding under or. 21, r. 100, is of no effect in this case. A suit ceases to be pending when there is a decree; and an application ceases to be pending when it has been disposed of Ramkumar v. Abhayapada (( 1942) A. I. R. (Cal.) 441.)—the facts of which are very close to this case ; Jitendra Nath Beta v. Makham Lal Bera (I. L. R. [ 1942] 2 Cal. 148.) ; Kalish Chandra Saha v. Bemola Sundary Dasya (( 1946) 50 C. W. N. 359, 360.). There is only one class of case in which it has been held that a suit is still pending although decrees have been passed, and that is a mortgage suit in which the potentiality for a further personal decree being passed keeps the suit still pending. Here, however, the compromise decree itself contained a personal decree and so excluded the question of obtaining such a decree in the future. The decree in the mortgage suit was not made in a suit to which the Act applies within the meaning of the relevant sections of the Act and it could not be reopened. Khambatta K.C. and B. Sen for the respondents Nos. 1 to 10. The suit is pending if there is the possibility of a further decree. In the petition of the present appellant to the High Court for leave to appeal to the Privy Council it was stated that " the aforesaid mortgage suit resulted in a decree passed 11 on compromise on October 5, 1931, and the compromise " decree purported to be a final mortgage decree for a total " sum of Rs. 45,825-8 with further interest at 6 per cent. " per annum, payable in sixteen instalments . . . . 45,825-8 with further interest at 6 per cent. " per annum, payable in sixteen instalments . . . . and it V was further provided that on failure to pay one instalment " the whole of the remaining sum would be due and recoverable " with interest at 10 ½ per cent, per annum, by a sale of the " mortgage properties and in case of deficiency, by a sale " of the other properties of the mortgagors and also by personal " execution/ That compromise decree was not satisfied either by sale of the mortgage properties or of other properties of the mortgagors, and therefore while there is this possibility of the mortgagee proceeding to personal execution the suit, on the appellants own argument, is still pending and the proceedings in execution are still pending. [Reference was made to Muhammad Kazim Alt v. Ramesh Chandra Sil (in( 1947) A. I. R. (Cal.) 270.) and Rai Saheb Sundermull v. John Carapiet Galstaun (( 1931) 62 Mad. L. J. 170, 173.).] Assuming that this compromise decree had not provided for personal execution, the position would still be the same, but until the deficiency is ascertained the right to personal execution cannot be proceeded with, and therefore, for the purposes of limitation, until three years from the time the deficiency, if any, is ascertained. On the last-cited authority, the mortgagees, having proceeded against the properties mentioned in the deed, had to realize the balance by attachment and sale of the properties, and only then, if there was still an insufficiency, was the court in a position to know whether it might give relief against the person of the debtor. [Reference was made to Pell v. Gregory (( 1925) I. L. R. 52 C. 828.).] Here the last date is July 30, 1938, when the sale in the second execution proceedings was confirmed, and the appellant had three years to run in which to apply for that part which was not satisfied by the sale. On the question of s. 115 of the Code, no objection was taken to the power of the High Court to exercise jurisdiction in this case under that section, and it is a sufficient answer to the objection under s. 115 that revision did lie on the ground on which the application was made, and to which no objection was taken by the High Court. The alternative proposition is that there was Law Rep. 76 Ind. App. 131 ( 1948- 1949) Joy Chand Lal Babu V. Kamalaksha Chaudhury 71 jurisdiction in the High Court to entertain these proceedings for revision on the ground that the trial court has in this case, in the words of s. 115 (b), " failed to " exercise a jurisdiction " which was vested in it. [Reference was made to Umed Mal v. Chand Mal (( 1926) L. R. 53 I A. 271.) and Balakrishna Udayar v. Vasudeva Aiyar ([ 1917] L. R. 44 I. A. 261, 267.).] If, on the true construction of the karbarnama, this was not a commercial loan, and it came within the purview of the Act, then that construction would be the very basis of the question of jurisdiction Yad Ram v. Sundar Singh (( 1923) I.. L. R. 45 A. 425.). [Reference was also made to Raja Bahadur Harihar Prasad Narain Singh v. Maharaj Kumar Gopal Saran Narain Singh (( 1935) I. L. R. 14 pat. 488, 496.) and Birj Mohun Thakoor v. Rat Uma Nath Chowdhry (( 1892) L. R. 19 I. A. 154, 150.), which last-cited case meets the position where the trial court has misconstrued some statutory enactment.] That leaves only the question of the construction of the karbarnama ; the decision of the trial court that the loan was a commercial loan turns solely on the document itself. No evidence was let in. The document speaks for itself. There is a statutory burden of proof on the money-lender to show that it was a commercial loan s. 40, sub-s. 5, of the Act, and that onus has not been discharged. Pringle K.C. replied. Mar, 17. The judgment of their Lordships was delivered by SIR JOHN BEAUMONT, who stated the facts set out above and continued The preliminary objection taken by the respondents is that leave to appeal to the Board was granted by the High Court under s. 109 (a) of the Code of Civil Procedure and that that sub-section only relates to appeals from decrees or final orders passed on appeal. The respondents contend that the sub-section does not apply to orders passed in revision, and they point out that under s. 115 a power of revision only arises in cases in which no appeal lies, so that there is a clear distinction between appeal and revision. The respondents contend that the sub-section does not apply to orders passed in revision, and they point out that under s. 115 a power of revision only arises in cases in which no appeal lies, so that there is a clear distinction between appeal and revision. The view that orders passed in revision do not fall within s. 109 {a) has been accepted by High Courts in India other than the High Court at Calcutta, and their Lordships think it is correct. It appears from the record that the application for leave to appeal to His Majesty in Council was based on s. 109 (a), and on the hearing of the application the court discussed matters relevant to that sub-section. But the certificate granting leave to appeal is not in the record. The certificate may have been granted under s. 109 generally, without specifying any particular sub-section, and sub-s. (c) is clearly wide enough to cover an appeal from an order made in revision. It was for the respondents to produce the certificate on which their objection to the competence of the appeal is founded, and as they have not done so their preliminary objection must fail. The preliminary objection taken by the appellant is that the High Court had no power to interfere in revision under s. 115 of the Code of Civil Procedure with the order of the Subordinate Judge; an objection which was not taken before the High Court. Section 115 of the Code is in these terms— " The High Court may call for the record of any case " which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if " such subordinate court appears— “ (a) to have exercised a jurisdiction not vested in " it by law, or " (b) to have failed to exercise a jurisdiction so vested, " or " (c) to have acted in the exercise of its jurisdiction " illegally or with material irregularity, " the High Court may make such order in the case as it " thinks fit.” Mr. Pringle, for the appellant, admitted that no appeal lay from the order passed by the Subordinate Law Rep. 76 Ind. App. 131 ( 1948- 1949) Joy Chand Lal Babu V. Kamalaksha Chaudhury 72 Judge, and he did not challenge the re visional jurisdiction on that ground. Pringle, for the appellant, admitted that no appeal lay from the order passed by the Subordinate Law Rep. 76 Ind. App. 131 ( 1948- 1949) Joy Chand Lal Babu V. Kamalaksha Chaudhury 72 Judge, and he did not challenge the re visional jurisdiction on that ground. Their Lordships accept this admission and express no opinion on its correctness. Mr. Pringle based his objection on the principle laid down by this Board in Rajah Amir Hassan Khan v. Sheo Baksh Singh (( 1884) L. R. 11 I. A. 237.) and Balakrishna Udayar v. Vasudeva Aiyar (( 1917) L. R. 44 I. A. 261.) and now firmly established, that a subordinate court does not act illegally or with material irregularity because it decides wrongly a matter within its competence. A court has jurisdiction to decide a case wrongly as well as rightly. Mr. Pringle Malntained that the learned subordinate judge had jurisdiction to decide that the loan was a commercial loan, and in so doing he did not act illegally or with material irregularity, and the High Court had no power to interfere in revision merely because it disagreed with his decision. So far Mr. Pringle is on safe ground, but the learned Subordinate Judge, having held that this was a commercial loan, was bound to go on to consider what effect that decision had on the respondents application, and, since the Act in terms does not apply to commercial loans, the learned judge was bound, on his finding, to dismiss the application without determining whether or no the respondents brought themselves within ss. 30 and 36 of the Act as they claimed to do. In so doing, on the assumption that his decision that the loan was a commercial loan was erroneous, he refused to exercise a jurisdiction vested in him by law, and it was open to the High Court to act in revision under sub-s. (b) of s. 115. There have been a very large number of decisions of Indian High Courts on s. 115, to many of which their Lordships have been referred. There have been a very large number of decisions of Indian High Courts on s. 115, to many of which their Lordships have been referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate court does not by itself involve that the subordinate court has acted illegally or with material irregularity so as to justify interference in revision under sub-s. (c), nevertheless, if the erroneous decision results in the subordinate court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under sub-s. (a) or sub-s. (b), and sub-s. (c) can be ignored. The cases of Babu Ram v. Munna Lal (( 1927) I. L. R. 49 A. 454), and Hart Bhikaji v. Naro Vishvanath (( 1885) I. L. R. 9 B. 432), may be mentioned as cases in which a subordinate court by its own erroneous decision (erroneous, that is, in the view of the High Court), in the one case on a point of limitation and in the other on a question of res judicata, invested itself with a jurisdiction which in law it did not possess, and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result. In the present case their Lordships are of opinion that the High Court, on the view which it took that the loan was not a commercial loan, had power to interfere in revision under sub-s. (b) of s. 115. The next question to be decided is whether the High Court was right in holding that the loan in this case was not a commercial loan. Under the definition in the Act a commercial loan is one advanced to any person to be used by such person solely for the purpose of business, etc. The matter therefore has to be regarded from the point of view of the lender, and it has to be determined for what purpose the loan was advanced, the burden of proving that the loan was a commercial one being on the lender. Where, as in this case, the loan is secured by an instrument in writing, the terms of such instrument must have an important, and, it may be, a decisive, bearing on the question. Where, as in this case, the loan is secured by an instrument in writing, the terms of such instrument must have an important, and, it may be, a decisive, bearing on the question. The mortgage of January 6, 1925, which is exhibit A, recites that the borrowers execute this deed of karbarnama (bond for obtaining loans for business) on mortgage of immovable properties to the following effect " We are running rice business and rice mill at Katwa. For " the said business and for other expenses, we require large " sums of money from time to time. Such amounts are not " being supplied from ourselves, and so the business is not " running well. Hence, we execute this karbarnama (i.e. bond " for loan transactions for business) on mortgage of immovable M properties to carry on money-lending business to the extent " of Rs. 25,000 . . .” The appellant relies strongly on the description of the loan as " a bond for obtaining loans for business," but such a description is not inconsistent with a part of the loan being required for other purposes. The learned judges of the High Court considered that on the construction of the document it was clear that Law Rep. 76 Ind. App. 131 ( 1948- 1949) Joy Chand Lal Babu V. Kamalaksha Chaudhury 73 the loan was required for business and other purposes, and that therefore the money was not advanced solely for business purposes. The appellant contends that the recital that the money was required for business and other expenses and that they had not got the money was merely a recital of historical facts explaining why the business was not running well, and does not qualify the purpose for which the loan was obtained, which appears from its description as karbarnama. Their Lordships are not able to accept this view. They agree with the learned judges of the High Court in thinking that the reference to " other expenses " cannot be explained on any hypothesis which confines the loan exclusively to business transactions. In the result; their Lordships are satisfied that the appellant has not discharged the burden of proving that this was a commercial loan. There remains the further question of whether the mortgage suit in the present case is a suit to which the Act applies within s. 36 of the Act. In the result; their Lordships are satisfied that the appellant has not discharged the burden of proving that this was a commercial loan. There remains the further question of whether the mortgage suit in the present case is a suit to which the Act applies within s. 36 of the Act. Section 2, sub-s. 22, defines such a suit as being a suit 01 proceeding instituted or filed on or after January 1, 1939, or pending on that date. The mortgage suit in this case was filed long before 1939, and the only question is whether there was any suit or proceeding pending on January I 1939- As already noted, the learned Subordinate Judge based his view that there was a suit or proceeding pending on the fact that the order disposing of the application for possession made by the decree-holders had not been noted on the records of the court until after January 1, 1939, though possession had been given before that date. The High Court did not differ from this view, though they displayed for it no marked enthusiasm, and based their decision rather on the fact that the application under r. 100, Or. 21, was pending on January 1, 1939. Their Lordships hesitate to disagree with the opinion of the learned Subordinate Judge on a matter relating to the practice of his own court. They are, however, unaware of any provision in the Code of Civil Procedure which prevents delivery of possession given by the court from being effective until the fact of delivery has been noted on the records of the court. Nor do they see any convincing reason for such a rule, particularly when, as in the present case, the delay in completing the record of the court was due to default on the part of an officer of such court. Nor do their Lordships attach much importance to the fact that the application under r. 100 of or. 21 was pending. They share the difficulty felt by Henderson J. in Jitendra Nath Bera v. Makham Lal Beta (I. L. R. [ 1942] 2 C. 148.), in holding that the action of a third party can be regarded as a proceeding in execution within s. 2, sub-s. 22, of the Act. Mr. 21 was pending. They share the difficulty felt by Henderson J. in Jitendra Nath Bera v. Makham Lal Beta (I. L. R. [ 1942] 2 C. 148.), in holding that the action of a third party can be regarded as a proceeding in execution within s. 2, sub-s. 22, of the Act. Mr. Khambatta, however, on behalf of the respondents, has relied on a different ground for establishing that the suit was pending on January 1, 1939. He contends that at any time within three years from November, 1938, when the last application in execution was disposed of, the decree-holder could apply for a personal decree under Or. 34, r. 6, and that the suit was pending so long as such right was open. For this proposition he relies on a decision of the High Court at Calcutta, Muhammad Kazim Ali v. Ramesh Chandra Sil (( 1947) A. I. R. (Cal.) 270.). Mr. Pringle for the appellant conceded, rightly as their Lord-ships think, that the suit was pending so long as there was a right to obtain a personal decree which was not barred under s. 181 of the Limitation Act, but he contended that the compromise decree of October 5, 1931, itself contained a personal decree, and there could therefore be no right to obtain such a decree in the future. For some unexplained reason the compromise decree has not been printed in the record, but an office copy with an English translation has been lodged with the Registrar, and their Lordships have referred to it. The decree was passed in terms of the compromise between the parties. The compromise states that the decree shall be considered to be the final decree in the suit, and provides that on failure to pay an instalment the plaintiff shall be competent to realize the amount due by auction sale of the property attached in execution of the decree, and if the entire amount is not realized thereby, to realize the balance by attachment and sale of the other properties belonging to the defendants and " from their persons by executing the decree." Mr. Pringles contention is that these last words amount to a personal decree for payment. Suits for the sale of mortgaged property are dealt with in or. 34 of the Code of Civil Procedure. Pringles contention is that these last words amount to a personal decree for payment. Suits for the sale of mortgaged property are dealt with in or. 34 of the Code of Civil Procedure. The scheme of the Code is that a preliminary decree is passed under r. 4, by which the amount due is Law Rep. 76 Ind. App. 131 ( 1948- 1949) Joy Chand Lal Babu V. Kamalaksha Chaudhury 74 ascertained, and in default of payment the plaintiff is given liberty to apply for a final decree directing sale of the mortgaged property or a sufficient part thereof. See Form 5 in Appendix D. A final decree is passed under r. 5 and directs that if the amount due has not been paid the mortgaged property or a sufficient part thereof shall be sold and the proceeds brought into court and dealt with as directed in the preliminary decree. See Form 6 in Appendix D. The final decree does not contain an order for payment, but r. 6 provides that where the proceeds of sale are insufficient to pay the amount to the plaintiff the court, on application by him, may if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance. Form 8 in Appendix D. contains the form of a personal decree and orders payment of a specific sum. The argument of Mr. Pringle is that in this case the compromise decree embodies the terms of a preliminary decree, a final decree, and a decree for personal payment, and that this could be done by agreement. The decree no doubt embodies the terms of a preliminary decree and a final decree, and goes beyond a final decree in directing sale of the property of the mortgagors not included in the mortgage, property which in the absence of agreement could have been reached only in execution of a personal decree. But at the date of the compromise decree, the court was not in a position to determine whether any balance would be legally recoverable after the sales. It could only have passed a decree for payment of such balance, if any, as might ultimately be found due. But at the date of the compromise decree, the court was not in a position to determine whether any balance would be legally recoverable after the sales. It could only have passed a decree for payment of such balance, if any, as might ultimately be found due. A decree for payment of a balance, unascertained and unascertainable till a large number of sales have been completed, and possibly then found to be non-existent, would be, to say the least of it, an unusual form of decree, and one which could hardly fail to cause serious embarrassment to a court asked to execute such a decree against future property of the judgment debtor not included in the compromise decree. Their Lordships are not prepared to hold that the court which passed the compromise decree intended to make, or did make, any such order. They think that the words on which Mr. Pringle relies amount to no more than a submission by the mortgagors to consent to a personal decree for payment of the ultimate balance if and when any such balance should be found to be due, and legally recoverable. In their Lordships view all the points urged by the appellant against the judgment of the High Court fail. Their Lordships will therefore humbly advise His Majesty that this appeal be dismissed. The appellant must pay the costs.