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Lachmi NaraIn and ors. Vs. Amlok Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All174
AppellantLachmi NaraIn and ors.
RespondentAmlok Ram and anr.
Excerpt:
act no. iv of 1882 (transfer of property act), sections 86, 88, 89 - execution of decree--decree for sale on a mortgage--interest after date fixed for payment--civil procedure code, sections 209, 222. - - a decree for sale can only be made under the transfer of property act, 1882. it is as well to bear that in mind. the decree which can be made in a case like this is that which is specified in section 88 of that act. the section clearly shows that it is only the amount originally declared at the time of making the decree or found to be due under the account provided for by section 86, which the court can pay over to the plaintiff out of the proceeds of the sale, and that the court has no power to allow in the account under section 86 or in its declaration under that section interest..........the account or declared by the court; and from section 88 it is obvious that the proceeds of the sale decreed under that section must be applied, after payment of the expenses of the sale, in payment of 'what is so found due to the plaintiff,' and that the balance, if any, must be paid to the defendant or other person entitled to receive the same. the section clearly shows that it is only the amount originally declared at the time of making the decree or found to be due under the account provided for by section 86, which the court can pay over to the plaintiff out of the proceeds of the sale, and that the court has no power to allow in the account under section 86 or in its declaration under that section interest beyond the date which has to be fixed within six months from the date of.....
Judgment:

John Edge, Kt., C.J. and Blair, J.

1. Lala Lachmi Narain and others obtained a mortgage of certain immoveable property. On that mortgage they brought a suit for sale under Section 88 of the Transfer of Property Act, 1882. They obtained a decree under that section. The Court decreed Rs. 29,171-3 as the principal amount due with interest up to the date of suit, Rs, 2,873-6 for interest from the date of suit to the date of the decree, and Rs. 1,012 for interest from the date of the decree to the 2nd of January 1889, which was a date within six months of the date of the decree. It also decreed costs and gave interest on the costs until realization. The amount of the decree apart from costs and interest on the costs, was Rs. 33,056, The question is as to whether the Court decreed interest on the mortgage money after the 2nd of January 1889, or not. That portion of the decree upon which this question turns has been variously translated. One translation is given by the Subordinate Judge in his judgment in this case. Another translation was made by an official of this Court; and a third translation has been made by Mr. Lyons, who is the head translator of this Court, on a dispute arising as to the correctness of the translation during the hearing of this appeal, The translation made by Mr. Lyons is as follows: 'And it is ordered that the plaintiffs' claim be decreed to the extent of Rs. 29,171-3, and the rest of the claim to the extent of Rs. 11,697-7 be dismissed; that on the amount of the claim decreed the plaintiffs receive proportionate costs; that on the amount decreed from the date of suit, Rs. 2,873-6, and that, on the amount of costs from to-day up to the date of payment, the plaintiffs receive interest at the rate of Rs. 6 per cent. per annum.' That portion of the decree was subsequent to the portion of the decree in which the actual amounts were decreed.

2. Now it is contended on behalf of the decree-holders that the decree gave them interest on the principal amount beyond the date of the expiration of the six months which the Court fixed as the time when the payment should be made. We must see what would have been a legal decree in this case. A decree for sale can only be made under the Transfer of Property Act, 1882. It is as well to bear that in mind. The decree which can be made in a case like this is that which is specified in Section 88 of that Act. A decree for sale according to Section 88 shall be to the effect mentioned in the first and second paragraphs of Section 86 of that Act--'and also ordering that, in default of the defendant paying as therein mentioned, the mortgaged property, or a sufficient part thereof, be sold, and that the proceeds of the sale (after defraying thereout the expenses of the sale) be paid into Court and applied in payment of what is so found due to the plaintiff, and that the balance, if any, be paid to the defendant or other persons entitled to receive the same.' In order to see what would be a decree to the effect mentioned in Section 86, we must look at Section 86. We find that by the first paragraph of Section 86 the Court shall make a decree ordering that an account be taken of what will be due to the plaintiff for principal and interest on the mortgage and for his costs of the suit, if any, awarded to him, on the day next hereinafter referred to, or declaring the amount so due at the date of such decree. It is obvious that the words of Section 88--'what is so found due to the plaintiff'--must mean the amount referred to in the first paragraph of Section 86, that is, either the amount found due by the account directed to be taken in that section or the amount which the Court at the time of passing its decree declares to be due. It is also obvious that under Section 86 no future interest beyond a date within six months of the date of the decree can be entered in the account or declared by the Court; and from Section 88 it is obvious that the proceeds of the sale decreed under that section must be applied, after payment of the expenses of the sale, in payment of 'what is so found due to the plaintiff,' and that the balance, if any, must be paid to the defendant or other person entitled to receive the same. The section clearly shows that it is only the amount originally declared at the time of making the decree or found to be due under the account provided for by Section 86, which the Court can pay over to the plaintiff out of the proceeds of the sale, and that the Court has no power to allow in the account under Section 86 or in its declaration under that section interest beyond the date which has to be fixed within six months from the date of the decree. In certain events, in adjusting the amount to be paid to a mortgagee, certain additional costs are to be added under Section 94 of the Act to the mortgage money, but there is absolutely no provision that we are aware of for adding additional interest.

3. Now it appears to us that the granting of interest on the costs decreed was in contravention of Section 86. The power exercised by Courts to grant interest up to realization under the Code of Civil Procedure appears, in the case of decrees for sale, to be excluded by Sections 86 and 88 of the Transfer of Property Act. It would be well if Courts, whether of first instance or of appeal, in cases arising under the Transfer of Property Act, would read and consider the sections of that Act which contain the law on the subject which the Legislature in India has thought it necessary to enact. We have no powers as Judges in India to alter the Statute Law and we have no power to make decrees which are not in accordance with that Statute Law, when the Statute Law provides for the form of the decree to be made. It is not safe to assume that the law of the Transfer of Property Act is the law which was administered in the Courts of Chancery in England. In the present case, if we were to construe the decree as we are asked to construe it on behalf of the decree-holders, we should be holding that the Judge who made the decree made a decree which was beyond his jurisdiction, and which was not contemplated by Sections 86 and 88 of the Transfer of Property Act. In our opinion, where it is possible to do so, we should put such a construction on the decree as would make the decree one in accordance with the law. It is true that, in granting interest on the costs, the decree goes beyond what the law allows, but in other respects we can construe the decree, and we do, as one fixing the amount due for principal and interest up to the 2nd of January 1889; and for that amount, plus the costs decreed and the interest wrongly decreed on those costs and any costs coming under Section 94 of the Act, the property can be sold.

4. After the decree for sale under Section 88 was made, default was made in payment of the amount due, and thereupon the Court under Section 89 of the Transfer of Property Act made an order for sale. The order is rather a confused one. It is quite clear that under Section 89 the Court had no power to increase the amount for which the property might be sold, except in case it allowed extra costs under Section 94. It wrongly states in the order the amount which had been found due; but Section 89 is specific, and, no matter what the order under that section was, the Court would be bound to apply the proceeds of the. Sale in the manner mentioned in Section 88. The decree-holders attempted to execute the decree and order for an amount which included interest on the principal amount, and also for interest subsequent to the 2nd of January 1889. The mortgagors objected that execution could not be had for interest on the principal in respect of the period subsequent to the date fixed, which was the 2nd of January 1889. The appellants in the case before us, who were purchasers before suit of portions of the mortgaged property, raised a similar objection. The Court held that the objection raised by the mortgagors was good. Subsequently, in an appeal to which these appellants were no parties, an arrangement was made between the mortgagors and the decree-holders by which future interest should be payable. It is needless to observe that that arrangement and the decree in appeal which was passed in accordance with it did not bind the present appellants. Subsequently, on the decree-holders proceeding to obtain execution by sale, these applicants again objected that interest on the principal amount and interest after the 2nd of January 1889 could not be included in the sum for which the property could be sold, so far as they were concerned. The Subordinate Judge dismissed their objection, and from that order of dismissal this appeal has been brought.

5. In our opinion Sections 86, 88 and 89 are quite clear and leave no reason to doubt that the objection of these appellants was good in law. In coming to the above conclusion we have not overlooked the provisions of Sections 209 and 222 of the Code of Civil Procedure. In our opinion those sections cannot affect the special provisions of the Transfer of Property Act. We construe the decree on this particular point, as it may be construed, as a lawful decree under Section 88, and not as an illegal decree, as it would be if the contention of the decree-holders was correct, and we hold that the property cannot be sold in respect of any interest after the 2nd of January 1889, except such interest as was wrongly decreed on costs. We allow this appeal with costs.


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