TMI Blog1935 (11) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for trial to the Court of the Subordinate Judge of Bagalpur, who passed a preliminary mortgage decree dated June 20, 1927, in the usual form. He assessed the mortgage debt, including costs payable at the expiry of six months from the above date, at ₹ 4,12,662-13, and allowed the mortgagees further interest on this sum at the rate of 6 per cent, per annum until realization 3. It is not disputed that the suit fell to be determined in accordance with the provisions of Section 6 of the Sonthal Pargamis Settlement Regulation (III. of 1872), which restricts the allowance of interest in such cases. The section, upon the construction of which the decision of these appeals mainly turns, is as follows: 6. All Courts having jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are embodied in the present appeals. The principal defendant in the suit, the representative of the mortgagor, complains of the allowance of interest on the decretal amount at 6 per cent, until realization. The plaintiffs, the mortgagees, while seeking to uphold this part of the decree, complain that they have not been allowed interest pendente lite, i.e., between the dates of institution and final decree. These are the only points upon which their Lordships' judgment is sought. 7. The matter is dealt with by the learned Subordinate Judge in the following terms: Then there remains only one matter more for my consideration and that is: Whether this court ought to and can allow interest after the date of the decree and also pend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that Section 34 of the Civil Procedure Code, upon which the Subordinate Judge relied, had no application to mortgage decrees, which were dealt with under Rule 34 of the First Schedule to that Act; and that at the date of the Subordinate Judge's decree there was no provision in this rule for the granting of interest upon the decretal amount, though such a provision now appears there by a subsequent amendment of the Act. Their Lordships, however, think it clear from the judgment of the Board in Sourendra Mohan Sinha v. Hari Prasad (1925) L.R. 52 I.A. 418, 433 that Section 34 does apply, and that it authorizes the allowance complained of. Nor can their Lordships agree that Rule 34 in the Schedule in any way excludes the discretion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect of the decree is clear on the judgment of the Board in the case last cited, where Lord Davey says (1): [Their Lordships] think that the scheme and intention of the Transfer of Property Act [now the corresponding provisions of the Civil Procedure Code] was that a general account should be taken once for all, and an aggregate amount be stated in the decree for principal, interest, and costs due on a fixed day, and that after the expiration of that day, if the property should not be redeemed, the matter should pass from the domain of contract to that of judgment, and the rights of the mortgagee should thenceforth depend, not on the contents of his bond, but on the directions in the decree. 12. Their Lordships also think that the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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