N.G.A. Edgley, J.

1. The plaintiff in this suit is the Nawab Bahadur ofMurshidabad. His case is to the effect that, on 25th July 1920, he borrowed asum of Rs. 5,00,000 from the defendant, Rameswarlal Ganeriwalla in the benamiof Bilasroy Chowdhury and Srilal Chamria on the security of certain immovableproperties in Calcutta and also of two life insurance policies belonging toplaintiff. According to him, the understanding was that the defendant shouldreimburse himself for the principal and interest of the loan out of the rentsand profits of the immovable properties (and in case of his death, from theproceeds of the two insurance policies).

2. In 1927 the plaintiff instituted: Suit No. 1384 of 1927in this Court for a declaration that the above mentioned transaction was incontravention of the conditions of the Murshidabad Act of 1891. He obtained adecree in that suit on 2nd July 1928, the transaction being set aside on apersonal decree for five lakhs of rupees with interest thereon at 6 per cent.per annum being made against him. On appeal a consent decree was made on 13thAugust 1928 by which the decretal amount was increased from five lakhs ofrupees to six and a half lakhs with interest thereon at 6 per cent. per annumcompound. It was also directed that the defendant was to pay the premia andkeep the two life insurance policies in force which had been given by way ofsecurity. Thereafter, Bilasroy Chowdhury and Srilal Chamria assigned the decreeof 13th August 1928 in favour of the defendant Rameswarlal Ganeriwalla by twodeeds dated respectively 19th December 1928 and 17th January 1929. Thereafter,on the application of the defendant, the Official Receiver was appointed on 7thAugust 1929 for the purpose of collecting the rents of the aforesaid propertiesas well as the interest on certain Government securities. The Official Receiverappointed Babulal Chokhani, a cousin of the defendant, as his agent inconnection with this matter, on a remuneration of 15 per cent, of thecollections.

3. In September 1933 the Murshidabad Estate AdministrationAct was passed by the Central Legislature. On 23rd January 1935, Mr. K.C. De,the Manager of the Estate, in pursuance of the authority vested in him underthe aforesaid Act determined the liability of the plaintiff in respect of thedebt due to the defendant to be Rs. 26,892-3-6 and reduced interest thereon to6 per cent. per annum. Thereafter, on appeal, the Board of Revenue modified theaward of Mr. K.C. De on 28th July 1935 and held that the plaintiffs liabilityon 1st April 1934 was Rs. 5,42,173. The Board of Revenue further directed thatthe premia paid after April 1934 in respect of the two policies aforesaidshould be added to the debt which should carry interest at the rate of 6 percent. per annum.

4. The plaintiff maintains that, although the transactionunder which he originally became indebted to the defendant or his predecessorstook the form of a lease, it was in reality a loan, in respect of which he hadrepaid considerably more than double the amount of the original principal. Hetherefore claims that he is entitled to various reliefs under the provisions ofthe Bengal Money-lenders Act (Bengal Act X [10] of 1940). The main reliefswhich he seeks are as follows: (1) That he be released from all liabilities inexcess of the limits specified in cls. (1) and (2) of S. 30, BengalMoney-lenders Act; (2) that the transaction be re-opened and accounts be takenbetween the parties; (3) if necessary, the award of the Board of Revenue dated28th July 1945 be set aside; (4) that the insurance policies be re-assigned tohim and (5) that proper accounts be taken and the liability, if any, bedetermined under the provisions of the Bengal Money-lenders Act.

5. The case for the defendant is that the transaction dated25th July 1920, was a lease to Bilasroy Choudhury and Srilal Chamaria for aperiod of 21 years in respect of certain properties in Calcutta inconsideration of the sum of Rs. 5,00,000 paid as rent for the whole period inadvance. He denies that Bilasroy Choudhury and Srilal Chamaria were hisbenamdars. He states that, on 30th April 1923 these people mortgaged the leasedproperty to his father Chimonlal Ganeriwalla who died in 1924. Thereafter on20th January 1927 they executed two deeds in favour of the defendant empoweringhim to realise the rents issues and profits of the demised properties. Hedenies that the transaction dated 25th July 1920, was a loan or that he hasreimbursed himself in excess of double the amount of the sum advanced to theplaintiff on that date. He further contends that the plaintiffs claim, if any,and the question whether the transaction was a loan or not is now barred by theprinciples of res judicata or principles akin thereto.

6. With reference to the award of the Board of Revenue dated28th July 1935, the defendant claims that the debt due to him has become astatutory liability and the decision of the Board of Revenue is final and notopen to revision by any Court of law. He goes on to say:

Having regard to the Murshidabad Acts which are specialprivate Acts complete by themselves the rights and liabilities of the partiesare not affected by the Bengal Money-lenders Act which is a subsequent Act andwhich neither expressly nor by implication interferes with or is intended tointerfere with the rights or liabilities created by or under the MurshidabadActs.

7. The defendant through his counsel has admitted that hehas been repaid more than ten lacs of rupees by the plaintiff but he makes noadmission to the effect that the sum so received by him was considerably inexcess of double the amount of the sum advanced on 25th July 1920 or withregard to the precise amount which has been received by him, except thatbetween September 1929 and September 1932 the sum of Rs. 3,34,200 was paid tohim by the Receiver and that during the subsequent period until March 1942 hereceived a sum of Rs. 5,09,000 from the Manager of the estate appointed underthe Murshidabad Estate Administration Act of 1933. He pleads that aconsiderable sum of money amounting to about Rs. 3,84,000 is still due to himwith interest in respect of the award of the member of the Board of Revenuedated 28th July 1935.

8. The defendants main contentions, therefore, are that thetransaction, dated 25th July 1920 was a lease and not a loan, and that theamount of the plaintiffs liability in respect of this debt has been fixed inaccordance with the special provisions of the Marshidabad Estate AdministrationAct, 1933, the terms of which have not been affected by the provisions of the BengalMoney-lenders Act, 1940, which has no application in this particular case.

9. The following issues were framed:

1. Has this Court any jurisdiction to try this suit (Thisissue was subsequently deleted with the consent of both parties.)

2. Is this suit maintainable in view of the provisions ofMurshidabad Acts of 1891 and 1933

3. Does the Bengal Money-lenders Act, 1940, affect therights and obligations created under the said Murshidabad Acts

4. Is this suit barred by res judicata or principles akinthereto

5. Is the defendant a bona fide assignee for value withoutnotice and as such protected under S. 36(5), Bengal Money-lenders Act, 1940

6. Is the plaintiff entitled to go behind the decision ofthe Board of Revenue dated 28th July 1935

7. Is the plaintiff entitled in this suit in any event tore-open the consent decree dated 13th August 1928

8. Did the defendants predecessor lend to the plaintiff asum of Rs. 5,00,000 in the benami of Bilasroy Choudhury and Srilal Chamaria on25th July 1920 as alleged in the plaint or at all

9. Is the transaction dated 25th July 1920, a loan withinthe meaning of the Bengal Money-lenders Act

10. Has the defendant or his predecessor reimbursed himselfin excess of the double of the alleged original loan

11. Is the plaintiff entitled to any reliefs under theBengal Money-lenders Act, 1940

12. To what relief, if any, is the plaintiff entitled

10. Issues Nos. 4 and 9. - The first point for considerationis whether the transaction dated 25th July 1920, was a loan within the meaningof the Bengal Money-lenders Act, 1940. In S. 2(12) of the Act "loan"has been defined in the following terms:

Loan means an advance, whether of money or in kind, made oncondition of repayment with interest and includes any transaction which is insubstance a loan.

Certain exceptions are then mentioned with which we are notconcerned.

11. The indenture under which the transaction was effectedwas drawn up in the form of a lease for a term of 21 years, in consideration ofa sum of rupees five lacs

as advance of the total rent payable for and during the saidterm of 21 years the annual rent be one equal twenty-one part of the said totalrent and the said lessees do hereby covenant with the said lessor in mannerfollowing, that is to say, that the said lessees shall pay to the said lessorat or immediately before the execution of these presents the said sum of rupeesfive lacs as advance of the total rent payable during the said term of 21years.

The demised premises consisted of a number of Calcuttaproperties which, according to the schedule attached to the lease, yielded arental of approximately sixty thousand rupees per annum. The lessees covenantedto pay the owners and occupiers shares of the rates and taxes, to keep theboundaries of the said demised premises intact and to take certain othermeasures for the protection of the property, which are set forth in the body oflease which further provides that

the said lessor doth hereby covenant with the said lesseesthat they paying the rent hereby reserved and observing and performing thecovenants and conditions herein contained and on their part to be observed andperformed shall and may peaceably and quietly possess and enjoy the saidpremises hereby demised during the term of twenty one years without any lawfulinterruption from or by the said lessor or any person rightfully claiming fromor under him.

12. The learned Advocate-General on behalf of the defendantargues that, having regard to the terms of the indenture, dated 25th July 1920,this transaction cannot be regarded as a loan within the meaning of S. 2(12),Bengal Moneylenders Act. In this connection he points out that the indenturecontains no express condition for the repayment in any event of the amount advanced,together with interest, and in support of this contention he refers at somelength to the lessees covenants any breach of which would have given the NawabBahadur an immediate right of re-entry without repayment of the principal sumadvanced. He has also referred to the proceedings taken by the Nawab Bahadurhimself in 1927 when he filed a suit for the purpose of setting aside thelease, dated 25th July 1920. The plaint in that suit did not proceed on thefooting that the transaction dated 25th July 1920 amounted to a loan, but wasbased on the contention that it represented a lease which was in contraventionof the provisions of the Murshidabad Act of 1891, the first condition of whichwas in the following terms:

The said Nawab Bahadur shall not nor shall any of hissuccessors in the said titles sell, mortgage, devise or alienate the saidproperties respectively or any of them otherwise than by lease or demise for aterm not exceeding 21 years, and under a rent without bonus or salami.

13. The Nawab Bahadurs main contention as set forth in hisplaint in Suit No. 1384 of 1927 appears to have been that the sum of Rs.5,00,000 was really intended to be a bonus or salami. When this suit camebefore Page J. in July 1928 Sir B.L. Mitter on behalf of the plaintiff putforward a two fold objection to the lease (i) that it was for a premium whichwas not allowed by the Act and (ii) that the document was in effect ausufructuary mortgage in which possession had been given to the mortgagee. Thesecond of these contentions was not discussed in the judgment which wasdelivered by the learned Judge but Page J. nevertheless decided the suit infavour of the Nawab Bahadur on the finding that:

I have no doubt that the five lacs which the lessees agreedto pay to the lessor under the indenture of 25th July 1920 was a premium orsalami and not rent notwithstanding that it is stated therein to be an advanceof the total rent payable. In my opinion the terms of this lease clearlyoffended against the provisions of condition (1).

14. On the basis of this finding the learned AdvocateGeneral argues that the present suit is barred by res judicata or principlesakin thereto. He suggests that having regard to the terms of the finding atwhich Page J. arrived, it must be held to have been finally decided that thetransaction dated 25th July 1920, was a lease which had been rendered invalidby reason of non-compliance with the first condition as set forth in theMurshidabad Act of 1891 and could in no circumstances be regarded as a loan. Iam not prepared to accept this contention. It so happened that in view of theissues which had to be decided by Page J, it was not necessary to consider thesecond argument put forward by Sir. B.L. Mitter that the document was in effecta usufructuary mortgage. In any case the question whether or not thetransaction dated 25th July 1920, was a loan must now be considered withreference to the definition of "loan" as contained in S. 2(12),Bengal Money-lenders Act 1940, which was not in existence in 1928. No questionof res judicata can therefore arise.

15. If the definition of a loan had merely been to theeffect that it meant "an advance, whether of money or in kind, made oncondition of repayment with interest," on a strict construction of the languageof such a definition it might have been possible to hold that the transactiondated 25th July 1920, was not a loan. In my view, however, the words "andincludes any transaction which is in substance a loan" render it necessaryto give a liberal construction to the terms of the so-called lease in the lightof what must have been the real intention of the contracting parties at thetime when this document was executed.

16. There is no doubt that in July 1920 the Nawab Bahadur ofMurshidabad was financially embarrassed. The evidence in this connectionindicates, that his main concern at that lime was to obtain a loan of Rs.5,00,000. So great was his anxiety to achieve this purpose that he seems tohave signed the indenture without reading it carefully as he was under theimpression that it contained a clause to the effect that the demised premiseswould be returned to him if he repaid the advance before the termination of thelease. In fact, the document contained no such clause. Even on the basis of theestimated rental as set forth in the schedule to the indenture the demisedproperty was extremely valuable. Had he been properly advised or had he given amoments consideration to the precise implications of the lease to which he puthis signature it is hardly to be supposed that the Nawab Bahadur would haveagreed to place the lessees in possession of this property for a period of 21years as security for the very inadequate advance of five lacs of rupees. Thelessees were so anxious to conclude the transaction that they were evenprepared to run the risk of the lease being declared void. On this point PageJ. in his judgment dated 2nd July 1928, says:

to my mind it is clear that the lessees were content to riskthe chance of the lease being held to be void in order to obtain the verysubstantial benefits which they thought would accrue to them through being putinto possession of the demised premises.

17. In these circumstances, I am of opinion that thelessees covenants which are by no means onerous in their nature can only beregarded as mere formalities inserted for the purpose of giving the indenturethe form of a lease for 21 years. In all human probability it is not to besupposed having regard to the advantageous terms of the lease that the lesseeswould not have taken every precaution to see that their covenants werefulfilled to the letter.

18. On the assumption that the lease would remain in forcefor 21 years it contained adequate provisions not only for the repayment of theprincipal but also for a further sum considerably in excess of the principalwhich in the normal course of events would be collected by the lessees in theform of the rents issues and profits of the demised premises. It is true thatthe indenture makes no mention of any particular rate of interest but in viewof the definition of "interest" as contained in S.2(8), BengalMoney-lenders Act, this does not appear to be material. This definition is asfollows:

Interest includes any sum by whatsoever name sailed, inexcess of the principal paid or payable to a tender in consideration of, orotherwise in respect of a loan whether the same is charged or sought to berecovered specifically by way of interest or otherwise.

19. It is admitted by the learned Advocate General that whilethe lessees or their successors were in possession they actually collected inrespect of the demised premises more than ten lacs of rupees. Although theamount in excess of the principal sum advanced by them was not paid to themdirectly by the borrower it was certainly paid to them indirectly by him. Ittherefore falls within the definition of "interest" as contained inS. 2(8), Bengal Money-lenders Act.

20. Further although the indenture did not contain anexpress condition of repayment it was certainly contemplated by the partiesthat re-payment should be ensured by placing the lessees in possession of thedemised property for a period of 21 years.

21. In these circumstances I must hold that the transaction,dated 25th July 1920, was in substance a loan within the meaning of thedefinition of "loan" in S. 2(12), Bengal Moneylenders Act, 1940.These issues must be decided in favour of the plaintiff.

22. Issue No. 5.-It is not seriously contested that thedefendant is not bona fide assignee for value without notice. The onus lies onthe plaintiff to show that the defendant does not fall within this category,and this onus has not been discharged.

23. The question must, however, be considered whether or notthe defendant, as a bona fide assignee for value without notice is protectedunder S. 36(5), Bengal Money-lenders Act, 1940.

24. With regard to this point there is a considerableconflict of judicial opinion in this Court. In the case of Rai Manmatha NathBose v. Sm. Renula Bose, 45 C.W.N. 863 : (A.I.R. (28) 1941 Cal. 681) [LQ/CalHC/1941/112] . I heldthat such an assignee is not protected by S. 36(5) of the Act. When this mattercame before the Court of Appeal in July 1941 the learned Chief Justice heldthat a pre-Act assignee was protected by S. 36(5) of the Act, while thecontrary opinion was expressed by Nasim Ali J. In a later case Bhupendra NathDutt v. Devendra Nath, 46 C.W.N. 368 : (A.I.R. (29) 1942 Cal. 370) [LQ/CalHC/1941/153] , Sen J. heldthat S. 36(5) applied to pre-Act assignees and that a bona fide assignee forvalue who had taken the assignment before the Act came into force would not beaffected by S. 36 of the Act, while Roxburgh J. in the case of KrishnadhonMandal v. Nalini Chandra Purkait, 46 C.W.N. 388, held that S. 36(5) of the Actdid not give protection to an assignee who took his assignment prior to theAct. In the case of Hemanta Kumar Mukherjee v. Basanta Kumar Mukherjee, 46C.W.N. 677 : (A.I.R. (30) 1943 Cal. 26), Gentle J. agreed with the opinionexpressed by the learned Chief Justice in Renula Boses case : (45 C.W.N. 863 :A.I.R. (28) 1941 Cal. 681) [LQ/CalHC/1941/112] . Gentle J.s decision was, however, really to theeffect that whatever view may be taken of the rights of an assignee under S.36(5), Bengal Money-lenders Act, 1940, if the limits imposed by S. 30 of theAct have been exceeded, the borrower is entitled to a declaration releasing himfrom further liability. Admittedly this decision cannot be regarded as adecision of a Division Bench to the effect that a pre-Act assignee is in factexempted from the operation of S. 36, Bengal Money-lenders Act. In view of thisconflict of judicial opinion I adhere to the view which I expressed in the caseof Manmatha Nath Bose v. Sm. Renula Bose, 45 C.W.N. 863 : (A.I.R. (28) 1941Cal. 68l), and hold that the defendant is not protected by S. 36(5) of the Act.This issue must accordingly be decided in favour of the plaintiff.

25. Issue No. 8.-This issue was not seriously pressed. Noevidence was given to show that the defendants predecessor lent the plaintiffa sum of Rs. 5,00,000 in the benami of Bilas Roy Chowdhury and Srilal Chamaria.This issue must, therefore, be answered in the negative.

26. Issue No. 10.-The learned Advocate-General admits onbehalf of his client that a sum exceeding Rs. 10,00,000 was repaid by theplaintiff in respect of the advance of Rs, 5,00,000 which was taken by theplaintiff on 25th July 1920. Beyond this he makes no admission with regard tothe exact amount which was repaid after the advance was taken. In thisconnection, he mentioned that if it were necessary to regard the original loanas being the sum of Rs. 6,50,000, which represents the amount of the personaldecree passed against the plaintiff by consent on 13th August 1928, it might beconsidered whether by applying the principles laid down by Mitter and Akram JJ.in the case of Nripendra Chandra Saha Chowdhury v. Mahammad Abbas Ali, 47C.W.N. 578 : (A.I.R. (31) 1944 Cal. 113) [LQ/CalHC/1943/47] it would not be necessary for theplaintiff to prove that a sum exceeding Rs. 13 lacs had been repaid to thedefendant after the date of the consent decree. It will, however, be seenhereafter in discussing issues 11 and 7 that this point will not arise. Thisissue in so far as it relates to the transaction dated 25th July 1920 isdecided in favour of the plaintiff.

27. Issues Nos. 11 and 7.-One of the main points that hasbeen argued on behalf of the plaintiff in this case is that if it be held thatthe transaction dated 25th July 1920, represents a loan, and not a lease and itbe found that the plaintiff had repaid to the defendant or his predecessors asum exceeding twice the amount of the principal advanced on 25th July 1920, heis entitled under the general law to a declaration releasing him from allfurther liability in respect of this loan and that he has this right, notwithstandinganything contained in S. 36, Bengal Money-lenders Act.

28. Although the plaint appears to have been framedprimarily with a view to the exercise by the Court of the powers specified inS. 36(1), Bengal Money-lenders Act, Mr. Banerjee strongly presses his clientsclaim for a general declaration absolving him from further liability as analternative relief quite apart from the provisions of S. 36. By obtaining sucha declaration the plaintiff would at once be relieved from the restrictionswhich circumscribe the exercise of the powers of the Court under S. 36 for thepurpose of giving relief to the borrower, and in particular, it would no longerbe possible for the defendant to urge that he was protected by provisos (i) and(ii) of cl. (1) of S. 36. It is therefore important to consider whether in amatter of this sort the plaintiff is at all entitled to any relief apart fromthe provisions of S. 36.

29. In support of his argument, Mr. Banerjee has referred totwo cases in which general declarations of further non-liability were granted,namely, the cases of Manmatha Nath Bose v. Sm. Renula Bose, 45 C.W.N. 1091 andHemanta Kumar Mukherjee v. Basanta Kumar Mukherjee, 46 C.W.N. 677 : (A.I.R.(30) 1943 Cal. 26). In the first of these cases the learned Chief Justiceobserved:

I am not satisfied that it is necessary for the relief ofthe borrower in this case that the powers under S. 36 shall be exercised atall. The Act in S. 30, sub-s. (1)(a) has said that his liability is limited totwice the principal of the original loan, and it is clear in the present casethat that has been paid. That being so, the plaintiffs-the judgment-debtors-areentitled to a declaration that they are not liable to pay any more money underthe final mortgage decree (which is of course in respect of the principal andinterest of the original loan); the sum legally due under that final mortgagedecree is satisfied.

* * * * *

Again, S. 36 is a procedural section and it is only when theprocedure indicated in S. 36 is used, that the question of the applicability ofS. 36(5) arises. There is nothing in the procedure laid down by S. 36 whichaffects the Code of Civil Procedure. As I read the provisions of S. 36, theyare not in substitution of the provisions of the Code of Civil Procedure. Theyare supplemental to them. If the debtors ask that the Court should use theprovisions of S. 36, the Court must ask itself whether it has reason to believethat the exercise of one or more of the powers under the section would giverelief to the borrower. If S. 36(5) protects the rights of the pre-Act assigneeof the money-lender, then in this particular case using the provisions of S. 36would not give relief to the borrower so that the Court would not exercise itspowers under S. 36.

In the latter case Gentle J.s observations are as follows:

The process of re-opening is to enable the position betweenthe parties to be ascertained by taking accounts (when that is necessary to bedone) in order to discover either whether the borrower has discharged hisliability or the amount remaining due in light of the provisions in S. 30, Whenfor example a calculation of the rate of interest or investigation of thepayment made, are required then relief cannot be given until the transaction isre-opened and these things have been done. When, however, it is apparent thatthe borrower has paid double the amount of the original loan, there is no needto re-open the transaction and to take an account. In such even S. 30terminates the borrowers liability as it enacts be is not liable to payanything more. This is quite apart from relief being given by the Court afterit has directed the transaction to be re-opened. There is nothing in S. 30which makes its provisions subject to their being invoked under S. 36. There isno need for the borrower to do anything more than to show the sum he has paidis equal to or exceeds twice the amount of the principal of the original loan.Upon this being manifest the statutory provision immediately applies and thisliability is, therefore, determined as S. 30 enacts he is not liable for anyfurther sum.

30. In each of the above-cited cases, the declaration whichwas granted appears to have had the effect of modifying a decree by reducingthe debtors liability to the extent to which the limits imposed by S. 30 ofthe Act had been exceeded. According to a series of decisions of this Court towhich I will presently refer, it is difficult not to hold that suchmodification amounts automatically to a re-opening of the decree, and, therefore,necessarily involves the exercise of the Courts powers under S. 36, BengalMoney-lenders Act.

31. The first of these cases is that of Anath Nath Sircar v.Rajendra Nath Bhattacharjee, 45 C.W.N. 975 : (A.I.R. (29) 1942 Cal. 120) whichwas decided by Mukherjea and Sen JJ., in which the learned Judges observed:

In the present case the Court has found that thejudgment-debtor is entitled to relief under sub-cl. (c) of sub-s. (1) of S. 36,as he was made liable for interest exceeding the limits prescribed by S. 30 ofthe Act. As the decree has already been passed by which the excess interest wasgiven, the Court bas got to reopen the decree for the purpose of exercising itspowers under sub-cl. (c) of sub-s. (1) of S. 36. The Court below, therefore,was not justified in saying that the decree should not be re-opened in thiscase. The reduction of the decretal dues as well as revision of the order forcosts did, in our opinion, amount to a re-opening of the decree. As the Courtin reality has re-opened the decree, it is bound to make a new decree ascontemplated by S. 36, cl. (2), Bengal Money-lenders Act.

32. The same view was taken by Sen J. in the case ofMritunjoy Roy v. Netai Chand Dutt 45 C.W.N. 976 : (A.I.R. (29) 1942 Cal. 123)in which the learned Judge said:

When, however, the relief is sought after a decree hasalready been passed making the defendant liable to pay interest at a rate inexcess of the limit specified in S. 30 can the Court grant this relief withoutre-opening the decree I entirely fail to see how it can. So long as a decreeis in force the decree-holder is entitled to enforce it as it stands, and thejudgment-debtor is bound to obey it as it stands. The rights and liabilitiesunder the decree cannot be whittled down without interference with the decree.

* * * * *

In order to exercise my powers under S. 36(1)(c) of the Act,i.e., in order to relieve the borrowers from all liability to pay interest inexcess of the limits specified in S. 30, I must first take hold of the decree,examine it and then relieve the borrowers from the performance of so much of itas the Act allows. In other words I must first re-open the decree. I find itimpossible to appreciate how a decree can remain intact when a portion of it istruncated and nullified. The relief claimed can be granted only afterre-opening the decree.

* * * * *

Once the decree is re-opened the Court must under theprovisions of S. 36(2), pass a new decree in accordance with the provisions ofthe Act.

33. The decision in the case of Juggannath Roy v. MadanMohan Burman, 45 C.W.N. 1042 : (A.I.R. (29) 1942 Cal. 125) [LQ/CalHC/1941/132] is to the sameeffect.

34. Biswas and Roxburgh JJ. expressed the same view in thecase of S.K. Budhan Mia v. Jotindra Mohan Dutt, 46 C.W.N. 129 : (A.I.R. (29)1942 Cal. 132) [LQ/CalHC/1941/157] and a similar view has been taken by other Judges in the casesof Promode Nath Sinha v. Raseswari Dassi, 46 C.W.N. 153 : (A.I.R. (29) 1942Cal. 128), Kumud Behari Sen v. Satyabrata Sen, 46 C.W.N. 605 : (A.I.R. (30)1943 Cal. 169) [LQ/CalHC/1942/32] and Lal Mohan Chatterjee v. Suresh Chandra Mukherjee, 46 C.W.N.607 : (A.I.R. (30) 1943 Cal. 170) [LQ/CalHC/1942/33] .

35. There appears, therefore, to be a conflict of judicialopinion in this Court with regard to this matter. It has been argued by Mr.Banerjee that I am bound to follow the procedure that was adopted in thismatter by the Court which hears appeals from the original side in the case ofManmatha Nath Bose v. Sm. Renula Bose, 45 C.W.N. 1091. The only directauthority on this point which he has been able to quote is an observation containedin an unreported decision of Gentle J., in the case of Mohammad Amin v.Jogendra Kumar Banerjee, in which the learned Judge observed that he was boundto follow a decision given in an appeal from a Judge sitting on the originalside of this Court in preference to a decision of an Appellate Bench dealingwith an appeal from the muffasil. I find nothing either in Cl. 15 or in Cl. 16,Letters Patent, to warrant the distinction which Gentle J. has sought to draw.Whether the appeal be one from a Judge of the High Court or from a decision ofa Court subject to the superintendence of the High Court, the appellatejurisdiction is exercised by the High Court in both cases. The decisions ofAppellate Benches consisting of two Judges, whether such Benches are constitutedunder Cl. 15 or Cl. 16, Letters Patent, are, in my view, entitled to an equaldegree of respect, particularly in connexion with a matter such as theMoney-lenders Act, which applies not only to Calcutta but also to the muffasil.In the present case I feel compelled to adopt the view which seems logically tofollow from the majority of the decisions taken on the appellate side of thisCourt with regard to this matter.

36. After a careful consideration of the cases cited abovein the light of the general scheme of Bengal Money-lenders Act, I cannot avoidcoming to the conclusion that the Legislature intended that the measure ofrelief afforded to borrowers in respect of loans and decrees passed in respectof loan should be limited by the restrictions imposed by S. 36 of the Act,which only permits the re-opening of transactions or decrees in respect ofloans or the release of the borrower from farther liability under the expressconditions mentioned in that section. The Money-lenders Act is a general Actfor the purpose of regulating money-lending transactions in Bengal and it seemsto me only reasonable to suppose that in an Act of this nature where aprocedure for obtaining relief has been provided in the Act itself, it musthave been intended that a borrower who wishes to obtain relief from hiscontractual obligations in respect of a loan should have recourse only to theprocedure provided in the Act itself and that the opening words of S. 36"Notwithstanding anything contained in any law for the time being inforce" must in this respect have the effect of excluding the operation ofsuch general statutes as the Code of Civil Procedure or the Specific Relief Actin so far as those statutes might be construed as providing remedies unfetteredby the restrictions of S. 36, Bengal Money-lenders Act. This Act gave theborrower a new right and imposed a corresponding liability on the lender inrespect of loans. This matter, therefore, appears to fall within the thirdclass of cases mentioned by Willes J. in his judgment in the case of TheWolverhampten New Waterworks Company v. Hawkesford (6 Scotts Rep. (N.S.) 356in which the learned Judge observed:

There are three classes of cases in which a liability may beestablished founded upon a statute. One is, where there was a liabilityexisting at common law, and that liability is affirmed by a statute which givesa special and peculiar form of remedy different from the remedy which existedat common law; there, unless the statute contains words which expressly or bynecessary implication exclude the common-law remedy, the party suing has hiselection to pursue either that or the statutory remedy. The second class ofcases is where the statute gives the right to sue merely, but provides noparticular form of remedy; there, the party can only proceed by action atcommon law. But there is a third class, viz., where a liability not existing atcommon law is created by a statute which at the same time gives a special andparticular remedy for enforcing it. The present case falls within this latterclass, if any liability at all exists. The remedy provided by the statute mustbe followed and it is not competent to the party to pursue the courseapplicable to cases of the second class.

37. In this view I am fortified by certain conclusions atwhich Roxburgh and Akram JJ. have arrived in Full Bench Reference No. 2 of 1942in which they disagree with the decision of the learned Chief Justice and NasimAli J. in the case of Rai Manmatha Nath Bose and ors. v. Sm. Renula Bose andothers, 45 C.W.N. 1091, The learned Judges point out that in their opinion"Section 30(1) by itself can have no effect to give relief in respect of adecree passed prior to the Act"; and that S. 36 of the Act provides forthe relief in respect of a limited class of old decrees (and possibly inrespect of decrees passed after the Act). Further in discussing the questionwhether or not relief may be given under S. 30 independently of S. 36 they say:

But there is then little point in the provisions in S. 36and in the restrictions contained therein confining relief in respect ofwrong decrees to a limited class therein defined which is liable to beaffected. In our opinion such an interpretation is not possible.

38. I must, therefore, hold that, if the plaintiff is at allentitled to relief in this case, be can only be given such relief under theprovisions of S. 36, Bengal Money-lenders Act, and subject to the restrictionsstated therein.

39. The more important relief for which the Nawab Bahadurasks in his plaint is that the transactions between the parties should bereopened and that accounts should be taken and further that be should bereleased from all liability in excess of those specified in cls. (1) and (a) ofS. 30. The main transaction which has to be re-opened if the plaintiff is toobtain relief is Sir Frederick Sachses decision, dated 28th July 1935, inwhich it was held that the manager was not empowered under S. 11, MurshidabadEstate Administration Act, XXIII [23] of 1933, to go behind a decree of thecivil Court. Sir Frederick Sachse went on to say:

The Board must, therefore, hold that the Rs. 6 1/2 lakhs ofthe consent decree must be taken as the starting point of this claim. From thisamount must be deducted all amounts actually paid. To it mast be added allinterest which has become due according to the High Court decree and also theamount of all premia paid up-to-date. On this basis the claim on 1st April1934, amounted to Rs. 5,42,173 and this amount is now admitted in modification ofthe Managers order..... The order is that the premia paid and to be paid afterApril 1934 will be added to the debt as also interest at 6%.

40. If this transaction is reopened, it will be necessary totake accounts between the parties as admittedly certain sums have been paid onor after 1st January 1939 which might be refundable to the plaintiff under S.36(1)(d) of the Act if it is found that he is at all entitled to relief underS. 36. The question whether or not Sir Frederick Sachses decision can bereopened will be discussed in connection with issues Nos. 2, 3 and 6, but, onthe assumption that it is possible to reopen this decision it remains to beconsidered whether such reopening will be sufficient to afford the plaintiffany relief under the provisions of the Bengal Money-lenders Act.

41. In my view the immediate effect of reopening SirFrederick Sachses order dated 28th July 1935, would be to place the parties inthe same position as they were before that order was passed and before theconsent decree dated 13th August 1928 had merged in the above mentioned orderof the Board of Revenue. I am not prepared to accept Mr. Banerjees argument tothe effect that after the reopening of Sir Frederick Sachses order, it wouldbe possible to ignore the consent decree dated 13th August 1928, in order toescape from the operation of the two provisos to S. 36(1) of the Act. Mukharjeeand Biswas JJ. had occasion to consider a similar argument in the case ofTarapada Banerjee and others v. Ajimaddin Mallick, 45 C.W.N. 969 : (A.I.R. (28)1941 Cal. 699) [LQ/CalHC/1941/121] . In that case they were dealing with a mortgage dated 2nd June1928, the consideration for which consisted in the total of certain sums dueunder two previous decrees passed in 1927. The two decrees were not decrees insuits to which the Act applied within the meaning of S. 2(22), BengalMoneylenders Act, and the learned Judges held that:

The consideration for the mortgage of 2nd Jane 1928 was thetotal of the two sums which were due under these decrees and the reopening ofthe mortgage transaction must necessarily, therefore, involve a re-opening ofthe two decrees. It is no answer to say that the decrees had ceased to exist byreason of the execution of the new bond in lieu thereof and that, therefore,there were no decrees to be affected. Proviso (ii), as we apprehend, does notmean that a decree may not be affected within the meaning thereof, if it is nolonger subsisting. On the other hand it seems to us clearly to contemplate theaffecting of decrees which were already satisfied. Such satisfaction might bethe result of payment in Court or out of Court, or on other grounds, as wouldappear to be the case here.

42. If, therefore, the decision of the Board of Revenue,dated 28th July 1935, be re-opened, it will be necessary for the plaintiff inorder to obtain the relief which he seeks also to re-open the consent decreedated 13th August 1928, which would be automatically revived by the re-openingof the order. To do this, however, would be in direct conflict with the twoprovisos to S. 36 (1) which are in the following terms:

Provided that in the exercise of these powers the Courtshall not

(i) re-open any adjustment or agreement, purporting to closeprevious dealings and to create new obligations, which has been entered into ata date, more than twelve years prior to the date of the suit by the parties orany person through whom they claim, or

(ii) do anything which affects any decree of a Court otherthan a decree in a suit to which this Act applies which was not fully satisfiedby the 1st day of January 1939, or anything which affects an award made underthe Bengal Agricultural Debtors Act, 1935.

43. From the terms of settlement which were included in theconsent decree, dated 13th August 1928, this decree represented an adjustmentor agreement purporting to close previous dealings and to create newobligations. It was entered into more than 12 years before the date of thepresent suit. Further, the decree in question is not decree in a suit to whichthis Act applies within the meaning of S. 2(22) of the Act as it was not madein a suit which was instituted or filed on or after 1st January 1939, or waspending on that date. The consent decree had in fact ceased to be an executabledecree on the publication of an order for the appointment of a manager under S.3, Murshidabad Estate Administration Act, XXIII[23] of 1933, which had certainconsequences provided in S. 4 of the Act, the second of which was to the effectthat as long as the management continued no suit or proceeding should lieagainst the Nawab Bahadur in respect of any debt or liability to which he mightbe subject.

44. The two above-mentioned provisos therefore constitute acomplete bar in respect of the plaintiffs claim to relief under the provisionsof the Bengal Money-lenders Act, and it is not therefore necessary to considerthe question as to the precise amount which may have been repaid to thedefendant or his predecessors in excess of the sum of 10 lakhs of rupees orwhether the amount of 6 1/2 lakhs should be regarded as the original loanaccording to the principles followed in the judgment of Mitter and Akram JJ. inthe case of Nripendra Chandra Saha Chowdhury and others v. Md. Abbas Ali, 47C.W.N. 578 : (A.I.R. (31) 1944 Cal. 113) [LQ/CalHC/1943/47] .

45. Had it been necessary for the purpose of any decreewhich might be passed in this suit to ascertain the precise amount for whichthe plaintiff was entitled to receive credit on account of repayment of theloan and the interest thereon, I would have directed the registrar to take anaccount with regard to this matter and to refer, if necessary, to such of theaccount books of the defendant and his predecessors as might still be inexistence and which might throw any light on this matter. As I hold, however, thatthese issues must be decided against the plaintiff the necessity for holdingany such enquiry does not arise.

46. Issues 2, 3 and 6: These are probably the most importantissues in the case and they raise a very interesting question as to the extent towhich a general Act such as the Bengal Moneylenders Act of 1940 can be held tomodify a prior special Act such as the Murshidabad Estate Administration Act,XXIII [23] of 1933. Although reference is made to the provisions of theMurshidabad Act of 1891 in Issue No. 2, we are not at present directlyconcerned with the construction of the provisions of that Act. It is admittedthat the Secretary of State actually entered into and upon the immoveableproperties of the Nawab Bahadur of Murshidabad in pursuance of the powersvested in him by the provisions of the Murshidabad Act of 1891 and this fact isrecited in the preamble to the subsequent Act of 1933. The matter with which weare immediately concerned arises in connection with the settlement of the defendantsclaim under the provisions of Ss. 11 and 13, Murshidabad Estate AdministrationAct, and with reference to this question Mr. Banerjees contention is that theplaintiff is entitled to re-open Sir Frederick Sachses decision, dated 28thJuly 1935, under S. 36, Bengal Money-lenders Act, 1940 and that alternativelyhis client is entitled to a declaration independently of S. 36, BengalMoney-lenders Act which will operate to release the plaintiff from allliabilities in respect of Sir Frederick Sachses decision in excess of thelimits imposed by S. 30 of the Money-lenders Act; as a corollary to thisalternative form of relief he also claims an injunction restraining the Managerof the Nawab Bahadurs estate from making any further payment under Sir FrederickSachses order, dated 28th July 1935.

47. Quite apart from the considerations which arose inconnection with issues Nos. 11 and 7, I must hold that the plaintiff is notentitled to any alternative relief on the lines suggested by Mr. Banerjee as S.30 standing alone can, in my opinion, have no possible application in respectof the amount of a debt or liability determined under Ss. 11 and 13,Murshidabad Estate Administration Act. Section 30, Bengal Money-lenders Act,relates to loans, interest on loans and decrees in which loans may have merged.

48. The debt or liability which has been determined under S.11 or S. 13, Murshidabad Estate Administration Act, does not fall within any ofthese categories. Even on the assumption that the transaction dated 25th July1920, originally represented a loan this loan subsequently merged in the awardof the manager or in that of the member of the Board of Revenue under Ss. 11and 13, Murshidabad Estate Administration Act. This award was certainly not adecree but may be described as having created a statutory liability which wasincapable of execution in any legal proceeding which might be instituted by thedefendant during the period that the Nawab Bahadurs estate remained under theadministration of the manager appointed under the Act. The creditors onlymeans of obtaining payment in respect of a claim as determined under theMurshidabad Estate Administration Act was by means of the exercise by themanager of his statutory functions under S. 14 which provided that aftermeeting certain claims mentioned in that section he should distribute anybalance "rateably among the other creditors of the Nawab Bahadur inpayment of their claims as so determined."

49. It follows, therefore, that S. 30, Bengal Money-lendersAct, standing alone will afford the plaintiff no relief.

50. In order to obtain for his client the benefit of thereliefs contemplated by the Moneylenders Act it is necessary for Mr. Banerjeeto show that Sir Frederick Sachses decision, dated 28th July 1935, is atransaction which can be reopened under the provisions of S. 36 of the Act inorder that on the re-opening of this decision the Court may exercise the powersset forth in S. 36(1) of the Act. This being the case, even if it be assumedfor the moment that the plaintiff on such re-opening of Sir Frederick Sachsesdecision would not be fettered by provisos (1) and (2) to S. 36(1), BengalMoney-lenders Act, the matter which still requires consideration is whether theBengal Money-lenders Act has had the effect of repealing or modifying thoseprovisions in the Murshidabad Estate Administration Act which purport to limitand determine the amount of the Nawabs liabilities under the statutoryprovisions contained therein.

51. There can be no doubt that the Murshidabad EstateAdministration Act is a special Act passed for the benefit of a particularindividual. The law with regard to the question whether a subsequent generalenactment has the effect of repealing a prior special enactment is summarisedas follows by Maxwell in his book on the Interpretation of Statutes (8th Ed.,156). The learned author points out that there is a general presumption that:

A general Act is to be construed as not repealing aparticular one, that is, one directed towards a special object or a specialclass of objects. A general later law does not abrogate an earlier special, oneby mere implication. Generalia specialibus non derogant or, in other words,Where general words in a later Act are capable of reasonable and sensible applicationwithout extending them to subjects specially dealt with by earlierlegislation......that earlier and special legislation is not to be heldindirectly repealed, altered or derogated from merely by force of such generalwords, without any indication of a particular intention to do so. In suchcases it is presumed to have only general cases in view and not particularcases which have been already otherwise provided for by the special Act.

52. In support of his argument Mr. Banerjee contends that anintention to repeal any sections in the Murshidabad Estate Administration Act,which may be construed as imposing on the Nawab a liability in excess of thelimits mentioned in S. 30, Bengal Money-lenders Act, must be inferred from thewords "Notwithstanding anything contained in the law for the time being inforce," which appear at the beginning of S. 30 and which introduce S. 36.These words are, however, of a general nature and must be construed withspecial reference to the subject-matter and objects of the Act in which theyappear.

53. In the case of Fitzgerald v. Champneys, (1862) 30 L.J.Ch. 777 : (5 L.T. 233), Wood V.C. had occasion to construe certain terms in ageneral statute even more explicit and precise than those on which Mr. Banerjeerelies. He nevertheless held that the general statute in question did not havethe effect of repealing a local and special Act of Parliament to which thegeneral statute made no express reference. He says:

The reason is, that the legislature having had its attentiondirected to a special subject and observed all the circumstances of the caseand provided for them, does not intend, by a general enactment afterwards toderogate from its own act where it makes no special mention of its intention soto do.

54. The application of the same principle is illustratedvery forcibly in Lord Hobhouses judgment in the case of Barker v. Edger andothers, 1898 A.C. 748 : (67 L.J.P.C. 115). In that case the question arosewhether a general statute known as the Validation Act had the effect ofinterfering with a prior special enactment relating to proceedings in theNative Land Court of New Zealand. The Validation Act contained a generalprovision that the commencement of proceedings in the Court constituted underthat Act should operate as a stay of proceedings in any other Court in respectof the same matters. It was held by the Court of Appeal in New Zealand that, inspite of the above-mentioned provision, the Validation Act did not affect theproceedings in the Native Land Court. The House of Lords agreed with this viewand in this connection Lord Hobhouse stated:

The general maxim is, generalia specialibus non derogant.When the legislature has given its attention to a separate subject, and madeprovision for it, the presumption is that a subsequent general enactment is notintended to interfere with the special provision unless it manifests thatintention very clearly. Each enactment must be construed in that respectaccording to its own subject-matter and its own terms........ It would requirea very clear expression of the mind of the legislature before we should imputeto it the intention of destroying the foundation of the work which it hadinitiated some four years before, and to which the Court has ever since beenassiduously addressing itself.

55. As regards its Subject-matter the Bengal Money-lendersAct, 1940, is described in its preamble as "an Act further to regulatetransactions of money-lending in Bengal." Section 30 imposes certainrestrictions upon the liabilities of borrowers in regard to the amounts whichare required to be paid by them in respect of loans, decrees relating to loansand interest on loans, If these limits are exceeded the whole transaction inconnection with the loan may be re-opened under S. 36 of the Act. That sectionprovides inter alia that a borrower may be released from all liabilities inexcess of the limits specified in cls. (1) and (2) of S. 30, and if necessary,a further decree may be passed in conformity with the provisions of the Act.The Money-lenders Act is one of general application and having regard to itsnature and its subject-matter as indicated in its preamble, it seems to me tobe only reasonable to suppose that the words "notwithstanding anythingcontained in any law for the time being in force" which appear in S. 30refer only to general statutes which by their terms might be construed toimpose upon the borrowers a liability exceeding the limits contemplated by thatsection. The form of the words used may be regarded merely as ft convenientmethod of repealing inconsistent provisions of such statutes as the InterestAct or the Contract Act without making any express reference thereto.Similarly, the use of these words in S. 36, which relates to the procedure tobe adopted for obtaining relief under the Moneylenders Act, may be reasonablyregarded as modifying or amplifying for the benefit of borrowers (subject tothe limitations contained in the section) any statute of general applicationrelating to procedure, such as the Code of Civil Procedure, which would nototherwise give borrowers the measure of relief contemplated by the BengalMoney-lenders Act.

56. In respect of its subject-matter, the MurshidabadAdministration Act is entirely different from the Bengal Money-lenders Act. Asalready pointed out, it is a special Act passed for the benefit of the estateof a particular individual. According to its preamble it is

an Act to provide for the appointment of a Manager on behalfof the Secretary of State of the properties of the Nawab Bahadur of Murshidabadand to define the powers and duties of the Manager.

57. The provisions of the Act are extremely drastic and areintended to provide a complete scheme

to afford the Nawab Bahadur protection against thedisabilities to which he is exposed by reason of his embarrassed circumstancesand to prevent further increase in his debts and to provide means for suchrepayment to his creditors as are compatible with the payment to the NawabBahadur of a sum sufficient for the maintenance of his position and dignity.

The measure of relief which the Act affords to the NawabBahadur in respect of debts and claims against his estate is unusual and almostrevolutionary. There can be no doubt that, if the provisions of the Act be readas a whole, as they are intended to be read, they place the Nawab Bahadur ofMurshidabad in a far more favourable position as regards his creditors than hecould possibly hope to attain by the application of the provisions of theBengal Moneylenders Act 1940.

58. Section 4 provides that all proceedings in respect ofdebts or liabilities pending in any civil Court against the Nawab Bahadur atthe time when the manager is appointed shall be barred. It further providesthat

so long as such management continues no suit or proceedingsshall lie against the Nawab Bahadur, in respect of any debt or liability towhich the Nawab Bahadur is subject.

His property is declared to be exempt from attachment orsale under process of any Court and he is declared to be incapable of enteringinto any contract which may involve him in pecuniary liability.

59. Sections 8 and 9 provide for the presentation to themanager of claims against the estate and S. 10 provides that any debt orliability which is not duly notified to the manager within the time and in themanner mentioned in Ss. 8 and 9 shall be barred.

60. Section 11 is in the following terms:

The Manager shall in the prescribed manner determine theamount of the principal of all debts and liabilities not barred under S. 10justly due to the several creditors of the Nawab Bahadur and to persons holdingmortgages, charges or liens on the property of the Nawab Bahadur and shalldetermine in like manner the interest, if any, due at the date of suchdetermination in respect of such debts and liabilities and may reduce the rateof interest charges as appears to him just and proper.

61. Section 13 provides for an appeal to the Board ofRevenue against certain orders of the Manager including an order

determining the amount of a debt or liability or of interestthereon or reducing the rate of interest under S. 11.

In this connection there is a further provision in S. 22 tothe effect that all proceedings of the Board of Revenue under this Act shall besubject to the supervision and control of the Provincial Government.

62. Section 14 provides for the preparation by the Managerof a scheme for the settlement of the Nawab Bahadurs debts and liabilities. Itstates that provision must be made for payment in full of certain claims andgoes on to say that:

the scheme shall further provide that any balance left aftermeeting the above claims and each annual residue thereafter shall bedistributed rateably among the other creditors of the Nawab Bahadur in paymentof their claims as so determined.

63. Section 27 provides that even after the withdrawal bythe Provincial Government from entry upon the immovable properties of theestate

no Court shall entertain any suit or proceeding against theNawab Bahadur in which the amount claimed is in excess of the amount determinedunder S. 11, 13 or 22, as the case may be together with any further interestdue thereon, or in which interest is claimed at a rate higher than the ratedetermined as just and proper under those sections.

64. In applying the procedure as laid down in the Act, itmight conceivably happen as is alleged in this case, that the manager or theBoard of Revenue, after taking all the relevant facts into consideration, mightdetermine as "justly due" to a creditor a sum exceeding the limitswhich were subsequently prescribed in 1940 for the benefit of ordinaryborrowers by S. 30, Bengal Money-lenders Act. On the other hand, it must not beforgotten that the Murshidabad Estate Administration Act imposes upon thecreditors of the Nawab Bahadur many disabilities and restrictions which are notcontemplated by the terms of the Bengal Money-lenders Act. For instance, theNawab Bahadurs creditors are under a statutory disability which debars themfrom suing for the amount of any debts as determined by the manager, they areunable to execute any decrees which they may have obtained against the estatebefore the appointment of the manager and the period within which they may beable ultimately to realise the amounts determined as "justly due" tothem depends on the amount of the balance available for distribution under S.14 of the Act.

65. In these circumstances to allow the Nawab Bahadursimultaneously to benefit from the provisions of the Murshidabad EstateAdministration Act and those of the Bengal Money-lender Act would amount to ananomaly which cannot have been intended by the legislature. To do so woulddisturb the balance of the former Act and would be entirely inconsistent withthe general scheme which underlies it. On the other hand on a reasonableconstruction of its provisions the terms of the Bengal Money-lenders Act cannotbe regarded as inherently inconsistent with or repugnant to those of theMurshidabad Estate Administration Act. The scope and the subject-matter of thetwo enactments are essentially different, and if they are properly construed itis possible to give effect to both Acts standing together. As pointed out byA.L. Smith J. in the case of Kutner v. Phillips, (1891) 2 Q.B. 267 : (60L.J.Q.B. 505):

A repeal by implication is only effected when the provisionsof a later enactment are so inconsistent with or repugnant to the provisions ofan earlier one, that the two cannot stand together, in which case the maxim"leges posteriores contrarias abrogant" applies. Unless two Acts areso plainly repugnant to each other that effect cannot be given to both at thesame time, a repeal will not be implied, and special Acts are not repealed bygeneral Acts unless there is some express reference to the previouslegislation, or unless there is a necessary inconsistency in the two Actsstanding together.

66. In my opinion, this is essentially a case in which theprinciple of "generalia specialibus non derogant should be held toapply. I must, therefore, hold that the provisions of the Murshibabad EstateAdministration Act are unaffected by those of the Bengal Moneylenders Act andthat the plaintiff is not entitled to go behind the decision of the Board ofRevenue, dated 28th July 1935. These issues must therefore be decided in favourof the defendant.

67. Issue 12-It follows that the plaintiff is entitled to norelief and this suit must be dismissed with costs. Certified for two counsel.The injunction dated 28th June 1943 stands dissolved.

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Nawab Bahadur of Murshidabadvs. Rameshwarlal Ganeriwalla(25.08.1943 - CALHC)