Full Judgment
B.K. Mukherjea, J.
1. This rule was obtained on behalf of the judgment-debtor, and it is directed against an order made by the Subordinate; Judge, First Court, Chittagong, rejecting an application of the petitioner for re-opening of the decree under Section 36, Bengal Money-lenders Act. The facts are very simple. The opposite party No. 1 advanced a sum Rs. 5000 to the petitioner on a hundi or bill of exchange drawn by the latter and accepted by opposite party No. 2 and the predecessor of opposite party No. 3. Some payments were made by one of the acceptors, but there being default in payment of the rest, the opposite party No. 1 instituted a suit upon the bill of exchange and obtained a decree on 13th February 1932. The decree was executed several times and the last execution case is still pending. The Court below has rejected the application of the borrower on the ground that the money being advanced on the basis of a hundi which was a negotiable instrument other than a promissory note, was not a loan within the meaning of the Bengal Money-lenders Act, and consequently the provisions of the Act were not attracted to this case. The Subordinate Judge further found that the loan was a commercial loan and on that ground too it was excluded from the operation of the Act. We may say at the outset that we are not at all satisfied that the learned Subordinate Judge was right in holding that the loan was a commercial loan, The evidence adduced on the point is pure hearsay and is totally insufficient to support the finding. Be that as it may, the other finding remains, and the learned advocate for the petitioner frankly admits that the money was advanced on a hundi which is not a promissory note. On, the face of it therefore the provisions of the Money-lenders Act are not applicable to the present case. The learned advocate for the petitioner says however that as on the hundi a decree had been passed, it is to recover a judgment debt and not a debt due on a hundi that the proceedings are now pending. As the debt created by the hundi is now merged in the decree, the prohibition contained in Section 2(12)(e), Bengal Money-lenders Act, is no longer applicable. In support of his contention the learned advocate has placed reliance on the decision of the Special Bench of this Court in Harsookh Das Balkissen Das v. Dhirendra Nath Roy : AIR1941 Cal498 .
2. In our opinion there is no substance in this contention. To bring a case within the purview of Section 36(6), Bengal Money-lenders Act, it is necessary that the decree must be one passed in a suit to which the Act applies and which was not fully satisfied on the 1st day of January 1939. The expression 'suit to which this Act applies' has been defined in Section 2(22) of the Act. It must be a suit or a proceeding for the recovery of a loan advanced before or after the commencement of the Act and money advanced on a negotiable instrument which is not a promissory note is not a loan within the meaning of the Act at all. It is argued by the learned advocate for the petitioner that the proceeding now pending is a proceeding in execution and it is for recovery of a judgment debt and not of the debt created by thehundi; but in that view, no decree could be said to have been passed in the suit to which the Act applies and which can be re-opened under Section 36, Bengal Moneylenders Act. The case in Harsookh Das Balkissen Das v. Dhirendra Nath Roy ('41) 28 A.I.R. 1941 Cal. 498 does not certainly support the contention of the petitioner. Here the point decided was that the Bengal Moneylenders Act was not ultra vires of the Provincial Legislature in so far as it operated on decrees made on promissory notes prior to the passing of the Act, promissory note being a matter coming within the Federal List. But money advanced on a promissory note is a loan within the meaning of the Act and it was not decided in this case that what was not a loan at the time when the suit was instituted would become a loan after the decree was passed or that the decree itself could be deemed to be passed in execution proceedings which were instituted for realisation of the judgment debt. The result therefore is that the rule is discharged with costs, hearing fee being assessed at one gold mohur.
Blank, J.
3. I agree.