Kedar Mal Marwari and Another vs Dewan Bishen Pershad (Deceased) and another

Macnaghten, J. 1. This suit was brought by the late appellant Biseswar Lal Marwari to enforce a mortgage bond dated September 5, 1886, hypothecating, together with other property, 8 annas of a mouzah known as Burhanpore or Badhanpore. 2. It seems that this share of Burhanpore was included in an earlier mortgage bond dated January 27, 1884. The owner of that incumbrance brought a suit to enforce his security and obtained a decree. The property was put up for sale on December 6, 1890. It was then bought for Rs. 2505 by the late respondent Dewan Bishen Pershad in the name of his relative Sumbhu Sahai. The incumbrancer from whom the appellants derive title was not a party to this suit or bound by the decree for sale. 3. Another suit (No. 47 of 1890), brought in respect of the same property on a bond dated October 4, 1882, resulted in a decree dated June 29, 1891. The principal question in that suit was as to the rate of interest on the money secured by the bond. The bond purported to reserve interest at the rate of 2 per cent per month, with annual rests and compound interest. But the learned judge held that rate exorbitant and improper under the circumstances, and allowed only simple interest at the rate of 1 per cent, per month or 12 per cent, per annum. Sumbhu Sahai, who represented the Dewan, was added as a party, and the decree was pronounced in his presence and also in the presence of the person from whom the appellants derive title, who being already a party to the suit was ordered to be "made a defendant as a subsequent mortgagee." Under this order, which was dated September 8,1890, amendments seem to have been made, though they are not to be found in the record. The order for sale of the property appears to have been made absolute. But on the day of the auction the Dewan deposited the amount found due to the plaintiff, the decree-holder. It was accepted by him. The sale did not take place, and the order for sale dropped. There was at the time an appeal pending on behalf of the plaintiff, who was dissatisfied with the rate of interest allowed, and also a cross-appeal on behalf of the Dewan on some question of costs. Ultimately a com-, promise was made. The Dewan paid the plaintiff Rs. 8000 in addition to the amount found due to him. By an order of the High Court dated June 21, 1892, the plaintiff''s appeal was by consent dismissed without costs, and so the order reducing the rate of interest on the bond of October 4, 1882, as against the mortgaged property and the subsequent mortgagees became absolute. 4. In the present suit Biseswar Lal obtained a decree to enforce his mortgage security of September 5, 1886. The Dewan, who as purchaser at the sale of December 6, 1890, had succeeded to the rights of the mortgagor, and who also stood in the shoes of the decree-holder under the decree of June 2''9, 1891, declined to redeem, and accounts were directed to be taken in view of Biseswar Lal either redeeming the Dewan or in default of payment standing foreclosed. 5. The accounts as passed by the Subordinate Judge allowed the Dewan the sum found due to the plaintiff in the suit No. 47 of 1890, with interest on the sum secured by the bond of October 4, 1882, at the reduced rate allowed by the decree of June 29, 1891, and also the sum of Rs. 8000 paid by the Dewan to the plaintiff in that suit on the occasion of the compromise which resulted in the order of the High Court dismissing the plaintiff''s appeal. 6. From the final decree in this suit of April 20, 1896, the Dewan appealed to the High Court. The judgment of the High Court was pronounced on May 23, 1898. The Court held that the Dewan was entitled to recover the sum of Rs. 2505 paid for the property at the sale of December 6, 1890, which was allowed by the Subordinate Judge, and to which no objection was taken in the High Court, and also the amount of principal and interest secured by the bond of October 4, 1882, according to the terms of that document up to date," while on the other hand he had" to account for rents and profits in the ordinary way up to that date." A slip in the accounts of rents and profits as passed by the Subordinate Judge was corrected, No order was made as to costs in the High Court, 7. The effect of that order, as worked out with interest at 2 per cent, per month and annual rests, resulted in Biseswar Lal having to pay Rs. 1,21,546 13a. IP. in order to recover 8 annas of Burhanpore. 8. The appellants contend that the Dewan was not entitled to a higher rate of interest under the bond of October 4, 1882, than that allowed by the decree of June 29, 1891. Their Lordships think this contention is plainly right. The High Court gives no reason for disregarding the decree of June 29, 1891, and none was given at the bar. The predecessor in title of the appellants was a party to that decree as well as the Dewan, and the Dewan himself before the Subordinate Judge claimed to be allowed, and was allowed, as against Biseswar Lal and the mortgaged property, the sum of Rs. 8000, which he voluntarily paid as the consideration for having the decree reducing the rate of interest made absolute. 9. It was contended on behalf of the Dewan''s representatives (who alone defended this appeal) that Biseswar Lal ought to have enforced his right, if any, in the suit No. 47 of 1890, and that it was not competent for him to bring a fresh suit. Assuming that contention to be well founded, it seems to their Lordships much too late now to raise a point not insisted upon in either of the Courts below. It was also urged that the effect of the Dewan finding the money to pay off the plaintiff in the suit No. 47 of 1890 was to foreclose all subsequent mortgages, and make the Dewan absolute owner of the property. It is hardly necessary to say that their Lordships were unable to accept that view of the transaction. 10. Their Lordships will humbly advise His Majesty that the decree of the High Court ought to be discharged, and that the Dewan''s representatives ought to pay the costs in that Court, and that the order of the Subordinate Judge ought to be restored subject to correction of the slip in that order pointed out by the High Court, the accounts brought up to date, and six months from the date of His Majesty''s Order in Council fixed for redemption of the property. 11. The Dewan''s representatives will pay the costs of the appeal. 12. Their Lordships observe that the record in this case was received in December, 1900, but that the case was not set down for hearing till September, 1903. They have accordingly directed the registrar to disallow to the appellants any costs which, in his view, may have been occasioned by delay on the part of the appellants in prosecuting the appeal.