TMI Blog1969 (4) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... ,866-51. The Court is concerned at this stage to pass a decree absolute for sale in a mortgage suit. It is not concerned to determine the respective rights of the mortgagees inter se. The mortgagees' interest is fully represented before the Court. Whether or not the Custodian of Evacuee Property is entitled to the money or that the evacuees have a subsisting interest is a matter which cannot be decided in this appeal. That was made clear by the judgment of the High Court in the application filed by the Custodian of Evacuee Property by order dated November 12, 1962, when the High Court observed. Appeal dismissed. - C.A. 608 OF 1966 - - - Dated:- 30-4-1969 - J.C.SHAH AND G.K. MITTER, JJ. JUDGMENT Seth Haroon and Sons a firm had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns were not decided in that proceeding. Diverse contentions were raised by the mortgagors; they con- tended, inter alia that on proper account being taken nothing was due by them on the mortgage, that interest was wrongly calculated at the rate of 4% per annum.. that the claim for recovery costs was barred by the law of limitation and that interest could not be awarded on costs. The learned Trial Judge substantially rejected the contentions raised by the mortgagors and passed a decree for Rs. 34,612- 8 1 being the aggregate of Rs. 3 3,8 66-51 as principal and Rs. 746-30 as interest. An appeal filed against that order was summarily dismissed by the High Court. With special leave, this appeal is preferred by the mortgagors. Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards principal and interest. The mortgagors made no payments under the decree directly to the mortgagees. But from time to time they claim to have made deposits in the Court under 0. 21 r. 1 of the Code of Civil Procedure, and in depositing some of the amounts they stated that the payments were towards the principal due. But there is no evidence on the record that the mortgagees were informed that the amounts were deposited towards the principal due, nor is there evidence that the mortgagees accepted the amounts towards the, principal. For quite a long time the mortgagees did not withdraw the amount lying in Court. Unless the mortgagees were informed that the mortgagors had deposited the amount only towards the principal and not towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est has accrued upon the debt, and is not paid, would be depriving the creditor of the benefit to which he is entitled under his contract. Counsel for the appellant contended that in Venkatadri Appa Row's(L.R. 47 I.A. 150) case there was no specific appropriation by the debtor, whereas in the present case there is specific direction by the debtor. But the normal rule is that in the case of a debt due with interest any payment made by the debtor is in the first instance to be applied towards satisfaction of interest and thereafter to the principal. It was for the mortgagors to plead and prove an agreement- that the amounts which were deposited in Court by the mortgagors were accepted by the mortgagees subject to a condition imposed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 4 % per annum was awarded from August 12, 1941 to November 10, 1946. It was urged, relying upon the order modifying the rate of interest, that from November 11, 1946 the mortgagees were entitled only to interest at the rate of3%. There is no substance in that contention also. The High Court by order dated August 10, 1946, observed : A preliminary decree for sale shall be drawn accordingly and the defendants (the appellants) are given three months time from today to pay off the decretal amount. The amount shall carry interest at the rate of 3 % per annum from the date of suit to 11-8-1941 and at the rate of 4% per annum from 12-8-1941 to the date of satisfaction. Apparently the decree drawn up by the. High Court was not consisten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly at the rate of 3 %. No such application was made by the debtors. It was apparently contended that the amount of Rs. 35,299- 1-6 as claimed by the plaintiffs in the original suit included interest, and interest could be computed on the amount which formed the principal. The High Court, in view of the decree passed by the Trial Court and confirmed by it declined to enter into that controversy and indicated the manner in which the interest was to be calculated between October 5, 1936 and November 10, 1946. The High Court did not reduce the rate of interest for the period after November 10, 1946, i.e. the date fixed for redemption of mortgage under the decree of the High Court. Counsel then urged that in any event the mortgagees are not enti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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