Tekait Krishna Prasad vs Surendra Mohan Kundu

Coutts, J.—With regard to this appeal the learned Subordinate Judge has found that the decree-holders are not entitled to any interest after the period of grace and it is in regard to this matter only that the decree-holders have appealed. The preliminary decree was passed on the 14th of July 1898. The portion of it which refers to interest runs as follows:

That defendant No. 1 is to pay to plaintiffs the costs incurred by them; and that till the day of realization interest on the bond-money will run at the rate mentioned therein.

And it is argued by the learned Vakil for the appellants that, on a proper construction of this decree, the decree holders are entitled to interest on the bond rate until the money is actually realized, The meaning of "day of realization" in a preliminary mortgage decree has been discussed by their Lordships of the Privy Counsel in Sundor Koer v. Rai Sham Krishen 34 C. 150 : 9 Bom. L.R. 304 : 11 C.W.N. 249 : 17 M.I.J. 43, 2 M.L.T. 75 : 4 A.L.J. 109 : 5 C.L.J. 106 : 34 I.A. 9 (P.C.). In that case their Lordships, in considering the case of Bameswar Koer v. Mahomed Mehdi Hossein Khan 28 C. 39 : 25 I.A. 179 : 2 C.W.N. 633 : 7 Sar. P.C.J. 413 : 13 Ind. Dec. (N.S.) 629, made the following observations: "The expression ''up to the date of realization'' may have been used per incuriam or it may have meant ''the day fixed for realization'' as in fact it seems to have been understood by the Reporter of the case in the Indian Law Reports as expressed in his marginal note. Their Lordships cannot have intended to say that Sections 86 and 88 of the Transfer of Property Act indicate that interest at the mortgage rate should be paid up to the time of actual payment of the mortgage-money to the mortgagee. These sections contain no direction for interest beyond the day to be fixed by the Court up to which the account is directed to be taken, and in fact the whole difficulty, on which there has been so much controversy, has arisen from that circumstance. It is enough to say that the question as to rate of interest (if any) to be allowed after the fixed day until actual realization was not before the Board, and the case is not an authority on that question." And, again, at a later stage of their judgment their Lordships said: "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." It seems clear, then, that the words ''date of realization'' in the preliminary mortgage-decree should be interpreted to mean the date of the expiry of the period of grace and that for the interest after this period the final decree should be looked to." In the present case there is no direction as to interest in the final decree. There is only the order dated the 3rd of July 1901:

The decree is hereby made absolute.

There is thus, as I have already said, no direction in the final decree for interest and, this being so, the learned Subordinate Judge was, in my opinion, right in his conclusion that it must be deemed to have been refused.

We have been referred by the learned Vakil for the appellants to the case of Gokuldas v. Ghasiram 35 C. 221 : 10 Bom. L.R. 144 : 7 C.L.J. 233 : 12 C.W.N. 369 : 35 I.A. 28 , in which the interest which had been allowed in the preliminary decree was allowed at the same rate until actual realization. That case, however, stands on an entirely different footing to the present case. In that case the final order ran as follows: "Whereas it appears to this Court that the defendant in this suit has not paid into Court or to the plaintiff the sum of Rs. 20,457 plus 1,106-10-0 and interest at 7 annas per cent. per mensem from the 22nd July 1896, which, by the conditional decree passed by this Court on 18th September 1896, he was required to pay on or before the 18th March 1897, it is hereby ordered that the conditional decree be made absolute." There was in that case no date fixed in the preliminary decree up to which interest at the rate allowed was to be payable. Consequently, it was held that interest at that rate was to continue after the period of grace up till the date of Actual payment. In the present case, however, the period fixed in the preliminary decree is the date of realization which is the end of the period grace. The case referred to, therefore, his no bearing on the present case. On the other hand, there is a case of the Calcutta High Court, Udit Narayan Jha v. Musammat Jasoda Sahun Kalan 46 Ind. Cas. 469 : 27 C.L.J. 576, which is on all fours with the present case and which entirely supports the view of the law which I have taken.

In my opinion, the decision of the learned Subordinate Judge is correct and I would dismiss this appeal with costs.

Sultan Ahmed, J.

I agree.