1. The plaintiff has appealed only with reference to that part of the judgment fixing a period for payment. We are of opinion that his objection cannot be maintained. As the Lower Court's decree stood, the payment might be made so long as the decree remained capable of execution, the Judge's order limiting the period to a fixed one of one month from the date of his decision appears to be proper and judicious; a conditional decree of this nature cannot be claimed as of right by the mortgagor, who ordinarily should be ready at once with his money, and it scarcely lies in his mouth to question the order of the Court as exercising a discretion in this respect.
2. The respondents have preferred objections under Section 348, Act VIII of 1859, to the effect that Regulation XV of 1793 does not apply to the mortgage in suit so as to limit the interest in any way, and that the cost of improvements should have been allowed to them, and that a conditional decree should not have been given.
3. On the last point we see no reason to interfere, the Courts have been in the habit of granting such decrees under certain circumstances, and we cannot say that the order is not justified in this case.
4. The deed, which is the subject of this suit, was executed on 16th January 1795, and the determination of the suit is governed by the law applicable to the province of Benares.
5. Regulation XV of 1793 was extended to the Province of Benares by Section 2, Regulation XVII of 1806, and we are of opinion that Section 6, Regulation XV of 1793, will govern this case, and that the lower Court's decision applying that provision, and only allowing the amount of interest on the loan of Rs. 200, equivalent to the principal, is correct.
6. By Section 6 of Regulation XV of 1793 'if the interest on any debt calculated according to the rates allowed by this Regulation shall have accumulated so as to exceed the principal, the Courts are not in any case whatever, excepting the cases specified in Section 12,' (and this is not one of those cases) 'to decree a greater sum for interest than the amount of such principal.'
7. This section was extended to the province of Benares by Section 2, Regulation XVII of 1806, and came into force on 1st January 1807, that is, it will govern the decision of suits instituted after that date; the Regulation nowhere declares that it shall not have retrospective effect in cases when the cause of action may have arisen prior to that date.
8. There is nothing in Section 3, Regulation XVII of 1806, inconsistent with its application. That section does no more than declare the rate at which interest is to be decreed in cases where the cause of action has arisen before a certain period; Section 3, Regulation XVII of 1806, refers to rates of interest; Section 6, Regulation XV of 1793, to accumulation of interest irrespective of rates. The two sections should be read together and so applied.
9. Nor is there anything in Section 6, Regulation XVII of 1806, which affects the question before us. That section declares that the rule by which redemption of mortgaged property takes place when the principal sum lent and simple interest due thereupon have been realized from the usufruct, shall not have retrospective effect in the province of Benares, but we are not called upon to apply that rule in the case before us, which is not a case whore there is a question of principal and interest having been realized from the usufruct, but is one where interest is claimed on a loan and is realizable otherwise than from usufruct, and where the interest has accumulated so as to exceed the principal. It is a case to which Section 6, Regulation XV of 1793, is peculiarly applicable. We notice a decision of this Court at p. 194 of the volume for 1867, where the rule in Section 6, Regulation XV of 1793, has been applied. We also consider that the Judge is right in disallowing respondents credit for expenses incurred in improvements of the property; they appear to have been unnecessary and not sanctioned by the terms of the mortgage.
10. We affirm the decree of the lower Appellate Court, and dismiss the appeal, but each party will pay their own costs of this appeal.