1. The short question that arises in this revision application is whether interest at the contract rate provided in the mortgage deed could be awarded in regard to the amount for which a personal decree is passed under Order XXXIV, Rule 6 C. P. C.
2. As the answer to this question is not to be made only on the legal principles applicable to the passing of the personal decree but the procedure adopted by the petitioners in seeking their remedy has a hearing on the ultimate decision of this question, a few facts need be stated : O. S. No. 61 of 1954 on the file of the Subordinate Judge of Srika-kulam, was filed on a simple mortgage bond and the preliminary and final decrees were also obtained^
I. A. No. 132 of 1957 was filed for passing a personal decree against the mortgagors, as in execution of the mortgage decree the mortgage security was also exhausted. The personal decree was passed on 26-9-1957 specifying the interest on the amount so due at 18 per cent per annum. As against this personal decree no appeal seems to have been preferred by the present petitioners; and that they did not intend to do so is also clear from the affidavit filed by the 1st petitioner in support of I.A. No. 341 of 1957 which the petitioners filed under Sections 151, 152 and 153 C. P. C. against which the present revision application has been filed.
3. I. A. No. 341 of 1957 has been dismissed on the main ground that this question of interest was raised and already decided against the defendants in I.A. No. 132/57 and it cannot therefore be considered over again. The present revision petition seeks therefore to revise that order so that the petitioners may have the benefit of having to pay only the legal interest that is awardable in personal decrees.
4. In deciding the question that arises, it is necessary to consider the nature of the personal decree vis-a-vis the preliminary and final decrees in a mortgage suit. A preliminary decree in a suit for sale is provided for under Rule 4 of Order XXXIV, C. P. C. A preliminary decree, in accordance with this Rule, will have to declare the amount due towards principal and interest on the stipulated basis on the mortgage and also fix a date within which the payment has to be made and specify that in default of the defendant paying the sum, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold for the amount covered by the preliminary decree and also for subsequent costs, charges, expenses and interest incurred in respect of the final decree. The sale of property in pursuance of the final decree is provided for in Rule 5 of Order XXXIV. Rule 6 is in the following terms :
'Where the net proceeds of any sale held under the last preceding rule are found insufficient to pay the amount due to the plaintiff, the court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.'
There is specific absence of any mention of interest in this rule. It only speaks of the balance amount due and that should be 'legally recoverable from the defendant otherwise than out of the property sold.' This personal decree will have therefore no tug or tether with the interest in immoveable property created by reason of the mortgage, but solely stands on the footing of a decree for the payment of money.
If, therefore in this connection, it is remem-bered that the scheme of the Civil Procedure Code provides in Section 34 the mode in which the interest has to bo provided at the time of the passing of a money decree, it becomes obvious that the non-mention of interest in Rule 6 of Order XXXIV cannot be taken to be an omission, but be regarded only as in keeping with the purpose of the provisions of the Code. This purpose is also made manifest by a reference to Form No. 8 in Schedule D to the Code of Civil Procedure which relates to the nature of the decree against a mortgagor personally for balance after the sale of the mortgaged property.
The rate at which the further interest has to be charged is specified in this Form as six per cent per annum from the date of the passing of the personal decree up to the date of realisation. Rule 8-A inserted by tne Transfer of Property (Amendment) Supplementary Act, 1929 (XXI of 1929) is in respect of the balance legally recoverable from the plaintiff otherwise than out of the property sold in a suit for redemption. There also, no mention is made about interest; but Form No. 8 in Schedule D applies to this case also.
A combined reading of Section 34 with these rules in Order XXXIV and the use of Form 8 in Schedule D makes it more than evident that the award of interest at the stipulated rate is not what is intended in the case of personal decrees; but that interest is awardable as in the case of a decree for the payment of money even when that amount becomes due as balance which remains unrealised even after the hypothecs has been sold is more than clear.
The principle so deducible from the language of the relevant provisions referred to above had been made applicable in a ease reported in Firm Daulat Ram Vidya Pargash v. Sodhi Gurbaksh Singh, AIR 1049 E.P. 213 by Bhandari J. I find myself in agreement with the reasoning of the learned Judge in upholding the contention that a personal decree is obviously a money decree and the rate of interest is regulated by the provisions of Section 34 of the Civil Procedure Code.
But the learned Judge has in that case found as a fact that the personal decree passed therein vvas completely silent with respect to payment of future interest and therefore declined to interfere in revision construing the silence as tanta-mounting to .a refusal. Nevertheless, it follows' that the rate of interest which an amount due under a personal decree ean carry eannot exceed more than six per cent need not he postulated as merely to depend upon the discretion of the Court hut as imperative under the Civil Procedure Code as it should not exceed six per cent per annum.
5. The position so arrived at would necessitate an interference by this Court in the interests of justice so as to strike down any interest in excess of what is statutorily prescribed. But it is urged that the present Revision Petition seeks to reopen a matter which has become conclusive by reason of the attitude of the present; petitioners in not filing an appeal against I.A. No. 132 of 1957. Does this present an insurmountable obstacle?
The defendants (Petitioners herein) against whom the personal decree had been passed have no doubt deliberately kept quiet without preferring an appeal questioning the rate of interest as awarded in the personal decree. But has this matter thus become irretrievable? Any determination on this point will have to be made with due regard to the broad accredited principle enunciated in the maxim 'Lex semper dabit remedium (Law will always afford a remedy)' and the possibility of remedying an error which has crept into legal proceedings and in adjudication of claims or the award of reliefs by a Court incidental thereto should not be overlooked, if they are not absolutely barred.
Considered from this angle, the question that poses itself is, whether applications under Section 152 C. P. C. are barred if a party choose not to appeal against a decree. In answer to this it may be stated that all that could be gathered from decided authorities is that when there is an appellate decree, an application under Section 152 for amendment of the decree will not lie to the first court; but even during the pendency of an appeal the right of a party to apply to the first court for amendment of the decree is not denied (vide Note 9 to Section 152 of the Civil Procedure Code, AIR Commentaries, 6th (1957) Edition, Volume II at page 1871).
Such being the case, the further question whether the finality of a decree in the matter of awarding interest wrongly out of an error committed by the court could not be amended so that the judgment and decree may not be violative of the injunctions in regard to the interest contained in the statute and thus the judgment and decree be rendered legal arises. Can this object be achieved by resort to Section 152 C. P. C. which speaks of amendment of judgments and decrees or orders?
6. As to the power of a court to get a relief for possession added by way of an amendment in suits for specific performance, considering that it was an omission or error under Section 152 C. P. C., the decision of a Division Bench consisting of Subba Rao, C. J. and Kumarayya J. reported in Annapu Ramanna v. Ponduri Sreeramulu 1958-2 Andh, W.R. 304 : (AIR 1958 Andh Pra 768), may be relied upon. There the question was whether without filing an application for review, an application filed under Section 152, C. P. C. could be granted. Subba Rao, C. J. speaking for the Division-Bench says at p. 311 (of Andh W.R.) : (at p. 773 of AIR):
'Even so, it is contended that the application should have been for reviewing the judgment as well as the decree, as it is said that the decree is in accordance with the judgment and what is in effect and substance asked for is to review the judgment which denied the applicant the relief of possession. The application was filed under Sec-tion 152, Civil Procedure Cede, which reads: 'Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.' The simple question is whether the error, which is now sought to be rectified, arose from an accidental slip or omission. From the statement of facts, it is seen that the suit was for specific performance of an agreement to sell and for possession. In such a suit, delivery of posssession is part of the specific performance of the contract of sale.'
Further on, it is pointed out that by an accidental omission, though the applicant succeeded on merits, the relief for possession was neither given in the judgment nor in the decree of the first Court, and that both the reliefs were inter-connected and they flow from the same right, i.e., the right of the applicant to have the agreement specifically enforced against the respondents, and that Section 152 empowers the Court to correct the mistake. In Re Swire; Mellor v. Swire, (1885) 30 ChD 239, the Court of equity corrected the record so as to make it conformable to what they decided earlier. That Court held that every court has an inherent power over its own records and that it can set right any mistake and pointed out that for hundreds of years Common Law Courts exercised this power and
'It would indeed be strange it the power were found to have disappeared when the Court of Appeal was created by the Judicature Act.'
Lindley, L.J. pointed out in the course of his judgment:
'The applicant, however, was wrong in not moving to vary the minutes, and has caused by this omission considerable difficulty, delay, and expense, and certainly we ought to discourage applications to amend orders which have been passed and entered, when it is so easy to set them right before they have been so dealt with. It appears to me, therefore, that be ought to pay the costs.....'
In Kasim Ahmed Jcwa v. Narain Chetty, 20 Mad LJ 630, the Judicial Committee were directly considering the order to be passed on a petition for amendment by providing interest subsequent to the date of the decree which was omitted by the appellate Court and where the order rejecting this petition for amendment has not been appealed to the Judicial Committee. Though they dismissed the appeal which went on special leave, they ordered :
'The judgment of the Chief Court will be amended by providing for interest subsequent to the decree in accordance with the prayer of the petition presented by the respondents.'
Having regard to these decisions and on analogy of them, the ambit of the powers of Courts in dealing with petitions for amendment of judgment and decrees, especially when a provision for interest as provided for in a statute is not made or when it is for correcting a mistake of the Court, is more than clearly brought out. The failure to file any review application or to prefer an appeal or the dismissal of an appeal when filed does not therefore preclude the exercise of powers under Section 152, C. P. C.
7. But there is a line of cases which, according to me, are distinguishable. They relate to decisions where the judgment and decree do not make mention of interest on the amount decreed in the suit and such silence could be taken as tan-tamounting to refusal to allow interest as such a contingency is provided for under Section 34(2) o the Civil Procedure Code. Dealing with such a case Division Bench consisting of Leach C. J. and Patanjali Sastri J., in Thirugnanavalli Animal v. P. Venugopala Pillai, AIR 1940 Mad 29 have stated the law correctly thus :
'As in the decree which the petitioner wishes to have amended there is no reference to further interest and the decree follows the judgment the Court must be deemed to have refused it. I do not suggest that if in the judgment further interest had been specifically allowed Section 34(2) would prevent the Court acting under Section 152 and correcting the decree.....'
In a later case in Nagaratnamma v. Seetharamam-ma, : AIR1952Mad237 Basheer Ahmed Sayeed J. was exactly dealing with a similar situation created by the failure to provide for interest in the judgment which has been construed as refusal to allow interest. But where there is only an error in allowing the interest or in specifying the rate of interest, and in the teeth of injunctions or directions contained in the statutory provisions, an amendment of the decree, in my view, providing for the contractual rate of interest which is in ex-cess of that allowable under the statutes could be relieved against by amending the judgment and decree. Even if an appeal has not been filed against the decree and judgment but where the error is manifest and especially where it cannot be said that the Court was vested with powers of discretion or otherwise to grant higher rate of interest than is provided for under Section 34 of Civil Procedure Code, the case for amendment of judgment and decree admits of no doubt.
8. In the result, the amendment is allowed. But having regard to the fact that this amendment is sought for at a late stage. I consider that the petitioner should pay the respondent's advocate a sum of Rs. 100/- within a fortnight from this day. The petition is therefore allowed but without costs.