John Beaumont, J.

1. The preliminary objection taken by the respondents is that leave to appeal to the Board was granted by the High Court under Section 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 Section 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 Section 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 Section 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 Section 109 generally, without specifying any particular sub-section, and Sub-section (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.

2. The preliminary objection taken by the appellant is that the High Court had no power to interfere in revision under Section 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 Judge, and he did not challenge the revisional 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 maintained 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 Sections 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-section (b) of Section 115. There have been a very large number of decisions of Indian High Courts on Section 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-section (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-section (a) or Sub-section (b), and Sub-section (c) can be ignored. The cases of Babu Ram v. Munna Lal (1927) I.L.R. 49 A. 454, and Hari 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-section (b) of Section 115.

3. 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. 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 properties to carry on money-lending business to the extent of Rs. 25,000....

4. 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 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.

5. There remains the further question of whether the mortgage suit in the present case is a suit to which the Act applies within Section 36 of the Act. Section 2, Sub-section 22, defines such a suit as being a suit or 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 1, 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 Rule 100, Order 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 Rule 100 of Order 21 was pending. They share the difficulty felt by Henderson, J. in Jitendra Nath Bera v. Makham Lal Bera 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 Section 2, Sub-section 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 Order 34, Rule 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 Alt v. Ramesh Chandra Sil (1947) A.I.R. (Cal.) 270. Mr. Pringle for the appellant conceded, rightly as their Lordships think, that the suit was pending so long as there was a right to obtain a personal decree which was not barred under Section 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 installment 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.

6. Suits for the sale of mortgaged property are dealt with in Order 34 of the Code of Civil Procedure. The scheme of the Code is that a preliminary decree is passed under Rule 4, by which the amount due is 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. Sec Form 5 in Appendix D. A final decree is passed under Rule 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 Rule 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.

7. 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. 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.

8. Their Lordships will therefore humbly advise His Majesty that this appeal be dismissed. The appellant must pay the costs.