1. This appeal arises out of a suit for foreclosure. The mortgage was dated the 4th of December 1874 and was a mortgage by way of a conditional sale. The Court of first instance gave the plaintiff a decree and after a remand from this High Court the lower Appellate Court confirmed the decree of the Court of first instance. The appeal is by the plaintiffs who complained that the Court below in making its decree for foreclosure ought to have allowed the plaintiffs interest up to the date fixed for payment. The mortgage was for a term of five years. It provided that the usufruct should go against the interest save to the extent of Rs. 10 per annum. The mortgagor covenanted to pay this Rs. 10 per annum, that if default was made in paying the sum the property might be at once foreclosed, and further that until the principal and interest were re-paid he would not hypothecate or transfer the property. The Court below has made a decree in favour of the plaintiffs providing that the amount due to the plaintiffs was the original principal amount plus the sum of Rs. 10 per annum for the period of five years, and that if the defendants did not pay that amount into Court on or before the day mentioned in the decree, they should be absolutely debarred from all rights to redeem the mortgaged property. The appellants contend that they were entitled not only to Rs. 10 per annum for the five years (the period of the mortgage) but that they are also entitled to Rs. 10 a year to the time of payment, and that if the whole sum is not paid the defendants should be debarred from all rights to redeem.
2. On behalf of the appellants the case of Mathura Das v. Raja Narindar Bahadur 19 A. 39 : 23 I. A. 138 : 1 C.W.N. 52 (P.C). is strongly relied upon. That was a case of a simple mortgage. It contained a covenant which is very much the same as the covenant in the mortgage in the present case. There Lordships of the Privy Council after setting forth the terms of the mortgage held that the mortgagees were entitled to interest after the stipulated period and reversed the decree of this High Court which had held the other way. We find it impossible to distinguish the present case from the case just cited. The only distinction suggested is that the present case is a mortgage by way of a conditional sale, while the case before their Lordships was a case of a simple mortgage. We do not think that any distinction in principle can be drawn on this ground. The construction of the contract ought to be the same, the language is practically the same, and in the present case there was a covenant to pay the Rs. 10 a year over and above the usufruct of the property.
3. On behalf of the respondent the case of Balwant Singh v. Gayan Singh 21 Ind. Cas. 253 : 35 A. 534 : 11 A.L.J. 829. has been relied upon. That like the present case was the case of a mortgage by conditional sale, but it will be seen that the terms of the mortgage were quite different from the terms of the mortgage in the present case. The provisions so much relied upon by their Lordships of the Privy Council were quite absent. The case accordingly is no authority in the present case.
4. We must allow the appeal, modify the decree of the Court below by providing that the sum declared to be due to the plaintiffs on account of principal, interest and costs shall be Rs. 550 on the 4th of December 1914 to which date we extend the time for payment into Court by the defendants. The appellants must have their costs including in this Court fees on the higher scale.