S. Saraswathi Ammal vs Seth Gobindram Lilaram and Others

S. Ramachandra Ayyar, C.J.—This is an appeal by one of the judgment debtors in Civil Suit No. 220 of 1951, against the judgment of

Sadasivam J., affirming the order of the Master, which included in the sale proclamation the interest that accrued on the mortgage amount

subsequent to the date of the final decree. In this case a preliminary mortgage decree was passed against the Appellant and three others on 2nd

September 1952. Paragraph 2 of the decree stated:

That there is now due to the Plaintiffs on the aforesaid mortgage of the property set out in the schedule hereto, the sum of Rs. 48,583-4-0 (Rupees

forty-eight thousand five hundred and eighty-three and annas four only) for principal, and the sum of Rs. 19,368-7-9 for the interest at 12 per cent

per annum on the aforesaid sum, and that on the 2nd January 1953 there will be due the further sum of Rs. 1,953-5-3 making in all Rs. 69,895-1-

0 (Rupees sixty-nine thousand eight hundred and ninety-five and anna one).

Paragraph 6 of the decree provided for payment into Court of this sum of Rs. 69,895-1-0 declared due under Clause 2 supra and the taxed costs

with interest at 6 per cent per annum from the date of taxation to the date of payment. The judgment-debtors did pay the mortgage amounts

specified in the preliminary decree. A final decree was, therefore, passed on 9th January 1953, stating that.

Defendants 1 and 2 made default in the payment of the amounts mentioned in the preliminary decree....

and directing that

the mortgaged property be sold in accordance with the preliminary decree made herein, dated 2nd September 1952 and more particularly

described in the Schedule hereto.

Both the preliminary and final decrees are in Form No. 57 and 60 respectively under the old Original Side Rules.

It is well known that the provisions of Order XXXIV, Code of Civil Procedure, have not been completely adopted by the Original Side Rules

which, under Order XXIX, has provided for a particular procedure to be adopted in the matter of obtaining decrees on mortgage and executing

the same. Order XXIX, Rule 9 provides for the passing of decrees in the form set out earlier. Rule 12 says.

If the sale is confirmed, the Court may pass an order in Form No. 61 or No. 62.

Under Forms 57 and 60, to which we have just now made reference, the decree amount to be specified in the decree is (i) the amount of

principal, (ii) subsequent interest till the date of suit, and (iii) further interest till the date fixed for redemption. Unlike Rule 11 of Order XXXIV ,

CPC there is no provision in Form No. 57 for including interest that accrued on the mortgage amount subsequent to the date fixed for redemption,

in the final decree that is to be passed. There is no provision in the form of the final decree given in Form No. 60 for such subsequent interest being

included. But the rules do contemplate the decree-holder being enabled to realize interest on his mortgage amount from the date fixed for

redemption till the date of realization on the sale under the mortgage decree at a later stage. Form No. 61 provides in paragraph 3 thereof that, out

of the sale proceeds, the amount due towards principal, interest till the date of suit and further interest till the date of redemption and costs should

be paid first and that after discharging the amount specified in the decree interest subsequent to the date fixed for redemption till the date of

confirmation of sale can be paid to the decree-holder out of surplus sale proceeds. The rule is the same even under the present rules. It is clear

from the rules set out above that the final decree in a mortgage suit can only be made for the realization of the amount due on the mortgage as on

the date of the suit together with subsequent interest till the date fixed for redemption and costs and for no other amount. A decree-holder to whom

payment is not made in terms of preliminary decree will be entitled to apply in a final decree for sale of the property, in the form set out above. But

the amount, in the final decree can only comprise the amounts specified in the preliminary decree. The interest that accrues subsequent to the date

fixed for redemption, to which a decree-holder will justly be entitled, can only be provided for under the rules by the order confirming the sale.

In the present case, interest subsequent to the date fixed for redemption under the decree was included by the Master as due in the terms of the

sale proclamation settled by him. This order was affirmed on appeal by Sadasivam J. This order of the learned Judge would be unexceptionable if

the procedure in execution of the mortgage decree were to be regulated strictly in accordance with Order XXXIV , Rule 11, Code of Civil

Procedure. But, as we pointed out above, there is a difference between the procedure sanctioned by the CPC and that prescribed by the Original

Side Rules. As the sale in the instant case is held out of a decree passed on the Original Side, the rules there under alone will have to be followed.

The sale proclamation can, therefore, only refer to the amount specified in the preliminary and final decrees. After the sale is effected, if there be a

surplus after discharging the amount due to the decree-holder in terms of the decree, the order confirming the sale will have to deal with'' the

question of awarding subsequent interest to the date of redemption on the amount due to the decree-holder under the mortgage decree. The sale

proclamation must, therefore, be brought in conformity with what we have stated above before execution is proceeded with.

There will be no order as to costs.