Jamuna Prasad Singh and Others vs Chakradhar Prasad Singh and Others

Fazl Ali, J.—The circumstances which have given rise to this application are briefly those: On 31sfc January 1921 the petitioner obtained a mortgage decree against the opposite party in the Court of the Subordinate Judge, Bhagalpur, who awarded him interest at the bond rate on the principal sum from the date of the suit till the date of grace which was fixed six months after the date of the decree.

It appears that the suit was not contested by the defendants first party who had executed the mortgage bond but was contested only by the defendants second party to whom the former had transferred their interest in the mortgaged properties by means of a sale deed. The defendants second party appealed to the District Judge, but the appeal was dismissed with costs on 8th August 1922. Thereupon the defendants second party filed a second appeal to this Court which was allowed and the case was remanded to the District Judge for a decision according to law. On 17th August 1926 the learned District Judge decided the appeal and passed the following order:

In the result the appeal is dismissed with costs and the judgment of the Court below is affirmed. The defendants will be allowed three months further time to pay.

On 10th March 1927 an application under Order 34, Rule 5, was made by the petitioner in the Court of the Subordinate Judge who ordered notices to issue to the defendants. As none of the defendants appeared to oppose the application of the petitioner the Subordinate Judge passed the final decrees on 4fch May 1927. On 13th May 1927 the opposite party filed a petition stating that the amount of interest calculated in the preliminary decree was incorrect and the Subordinate Judge ordered him to file talbana and process fee for issue of notice. The talbana, however, was not filed and the petition was rejected. On 26th May 1927 the decree was signed and sealed. On 21st November 1927 some of the opposite party (the defendants second party) filed an application before the Subordinate Judge for the amendment of the decree. That application runs thus:

That the plaintiffs have filed an execution case No. 380 of 1927 before your honour on false and incorrect accounts and the decree has been passed behind the back of the petitioners.

That the judgment has directed that the plaintiffs, are to get a decree on the principal and interest at She bond rate from the date of judgment till the period of grace and 6 per cent per annum onwards till realisation but the plaintiffs have got the interest calculated from 1st August 1920 (date of institution of the suit) till 17th November 1926 at the bond rate.

That the details of properties stated in the decree are also wrong and against the directions of the judgment.

It is therefore prayed that your honour will be graciously pleased to amend the decree and in the meantime order for the stay of Execution Case No. 380 of 1927 pending before your Courts.

On 15th December 1927 the Subordinate Judge rejected the application and thereupon the opposite party (the defendants that the application dated 3rd November 1927 filed by the defendant second party might be considered and disposed of according to law.

On 13th February 1929 the learned Subordinate Judge ordered the final decree tote amended and directed interest to be calculated at the bond rate up to 31st july 1927 which was the date of grace fixed by the trial Court instead of calculating it up to 17th November 1926 which was the date fixed for payment by the learned District Judge. The petitioner has now moved this Court in revision against this order of the learned Sub-ordinate Judge and it is contend on his behalf that the order is entirely without jurisdiction and should be vacated.

Now, the question before me is a very simple one, because if it appears that there is no arithmetical or clerical mistake or any error arising from accidental slip or omission in the decree or that it was m accordance with the final judgment passed in the case, I do not see how the learned Subordinate Judge could proceed to amend the decree. In this case the only serious question raised on behalf of the opposite party I what 1S substantially to be found in the following passage in the order of the learned Subordinate Judge:

In the last judgment of the District Judge dated 17th August 1926 there is no order about interest. The judgment and decree passed by the Subordinate Judge was on the other hand confirmed by him. This means that the order about interest was also confirmed. If the case had gone out of the domain of contract to the domain of judgment by the first judgment dated 31st January 1921 there is no reason why it should again go back to the domain of contract simply because one of the defendants had preferred an appeal which eventually failed.

The order giving a new time for paying up the decree after the last judgment means only this much that the property would not be sold for three months more and the decree could not be executed till that date. The time that was now allowed was not the time of grace aa contemplated by Order 34, Rule 4, Civil P.C. and no decree under Order 31, Rule 5, Civil P.C. was required to follow.

Now I am unable to agree with the learned Subordinate Judge that the three months time allowed by the District Judge cannot be regarded as the time of grace as it is ordinarily called.

The decree passed by the learned District Judge clearly states that the defendants are allowed three months further time to pay up. This is clearly an enlargement of the time fixed for payment by the appellate Court which the appellate Court was competent to do, and this being so, the law that interest from the date of the suit up to the date fixed by the Court for the payment of the mortgage debt must be calculated at the rate provided by the mortgage unless the rate is penal, must be given effect to. I fully realise that this is a somewhat hard case, because here the defendants will have to pay interest at the bond rate up to November 1926, although under the Munsiff''s decree they were to have paid interest at that rate only up to July 1921. But if the defendants or any of them had any grievance ''they might have appealed against the decree of the District Judge which they ''have not done. This being so, the law must take its course and it is impossible for this Court to give any relief to the opposite party by amending a decree which cannot under the law be amended. It may also be remarked that in. :the application of 3rd November 1927 made by the defendants second party for the amendment of the decree all that is said is that

the judgment has directed that the plaintiffs are to get a decree on the principal and interest at the bond rate from the date of judgment till the period of grace and at 6 p.c.p.a. onwards till realization, but the plaintiffs have got the interest calculated from 1st August 1920 (the date of the institution of the suit) till 17th November 1926 at the bond rate.

Thus it has not been clearly stated even in the application made by the defendants second party that the date fixed for payment by the District Judge was not what is ordinarily called the date of grace or that the interest should have bean calculate only up to 13th July 1920 and not up till 17th November 1926. I would therefore allow this application and set; aside the order of the learned Subordinate Judge amending the decree. There will be no order as to costs.