1. In Suit No. 53 of 1915 in the Rajapur Court, in the Ratnagiri District a decree was pissed in favour of the plaintiff for Rs. 1,450 payable by instalments. Rupees 1,000 out of the decretel amount was to carry interest at three per cent. The defendant defaulted, so that the plaintiff took out a darkhast in May 1920. The defendant replied to the darkhast with a darkhast of his own asking to be relieved against forfeiture. The darkhast, for some reason or other, did not come to a hearing before the Subordinate Judge until February 26, 1923, when the default was excused, but the Judge directed that the balance of the decretal amount should carry interest at seven per cent, instead of three. In appeal, the District Judge confirmed this order.
2. We have now before us a sale deed of December 30, 1921, by the judgment-debtor, of a portion of his property for Rs. 1,500, and it was intended that the purchaser should pay out of the consideration money sufficient to pay off the decretal amount under the darkhast which the plaintiff had taken out for execution of his decree. Only Rs. 900 were paid out of Rs. 1,500, and we do not know whether the judgment-debtor has recovered the balance of Rs. 600 and so taken advantage of the sale to keep that money, or whether, as we are told now, the purchaser has defaulted to that extent. However that may be, we have to consider two questions:
(1) Whether the default should be excused, and payment by instalments as originally decreed, allowed; (2) Whether the order of the trial Court enhancing the rate of interest of three per cent to seven was within its jurisdiction.
3. Both Courts appear to have relied upon the remarks of this Court in Narsinha Gopal v. Balvant Madhav A.I.R. 1922 Bom. 170 In that case a decree was made payable by instalments, and it was provided that in default of payment of two instalments the whole amount then due should be recovered with interest by sale of certain property over which a charge was declared. The defendant defaulted, and the decree-holder sought to recover the balance due under the decree by sale of the property. It was held that if the parties were restored to the position they would have held if no default had been committed, the ends of equity would have been secured. But when we said that as a Court of equity we had wide powers to do what seemed to us just, we did not mean we had powers to alter the terms of the decree either with regard to the decretal amount or the rate of interest which was to be paid thereon. And I do not think myself the executing Court had power to make an order enhancing the rate of interest which was fixed by the award decree. The remarks in the case I have cited must be read only with regard to the context. In that case the decree also gave a charge on certain property, so the plaintiff was secured when the default was excused. But in this case it appears that the debtor sold his property for the express purpose of paying off the decree, and we cannot be certain that he has not retained part of the purchase price, with the result that the chance of the plaintiff getting back the whole of what is due would be diminished.
4. Considering these facts, we think the fairest order to make is that the defendant should pay what remains due under the original decree within six months of these proceedings going back to the lower Court. Then in default of such payment, the plaintiff will be entitled to execute the decree. The appeal is dismissed and the cross-objections are allowed with costs to the judgment-debtor.
5. I agree.