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(Bohra) Tara Chand Vs. Haibat Shah and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1935All1003; 158Ind.Cas.233
Appellant(Bohra) Tara Chand
RespondentHaibat Shah and ors.
Cases ReferredJagannath Prasad Singh v. Surajmal Dalal
Excerpt:
- - 1. this ruling appears to be in point and it states that the rate of interest to be awarded is the contractual rate for the period down to the date fixed for redemption under order 34, rule 2. following this ruling i hold that the plaintiff has a good claim and accordingly i allow this second appeal with costs throughout and i direct that the decree shall be amended to specify that the contractual rate of interest should be paid from the date of suit up to six months from 13th may 1931. 2. as no authority has been shown for the respondent, i do not grant permission for a letters patent appeal......persons. the plaintiff brought a suit for sale on his bond on 25th august 1924, impleading one saadat shah and on 26th january 1927, the plaintiff applied to bring the heirs of saadat shah on the record as saadat shah had died on 13th april 1926. saadat shah left a widow whom the plaintiff would not admit to be the legally married wife of saadat shah, and it was held that she was a legal widow. the court held that saadat shah had no interest in the property and the lower appellate court upheld this finding. on appeal to the high court it was decided that saadat shah had an interest as the son and nephew of the original mortgagors. on 11th december 1930, the high court set aside the decrees of the courts below and remanded the case under order 41, rule 23, for a finding on an issue,.....
Judgment:

Bennet, J.

1. This is a second appeal by a plaintiff against concurring decrees of the two lower Courts. The facts are that the plaintiff was mortgagee on a hypothecation bond dated 26th August 1912, executed by three persons. The plaintiff brought a suit for sale on his bond on 25th August 1924, impleading one Saadat Shah and on 26th January 1927, the plaintiff applied to bring the heirs of Saadat Shah on the record as Saadat Shah had died on 13th April 1926. Saadat Shah left a widow whom the plaintiff would not admit to be the legally married wife of Saadat Shah, and it was held that she was a legal widow. The Court held that Saadat Shah had no interest in the property and the lower appellate Court upheld this finding. On appeal to the High Court it was decided that Saadat Shah had an interest as the son and nephew of the original mortgagors. On 11th December 1930, the High Court set aside the decrees of the Courts below and remanded the case under Order 41, Rule 23, for a finding on an issue, 'What is the extent of the share in the mortgaged property owned by Saadat Shah deceased?' and directed that after a finding on that issue the trial Court should pass a decree for sale of the remaining property excluding the share of Saadat Shah. The Courts below accordingly have now passed decrees. The question which arises is in regard to the contractual rate of interest. The plaintiff claims that the contractual rate of interest should run until six months after the last decree, that is, six months after 5th May 1931. The Courts below have held that the contractual rate shall only run until six months after the first decree, that is of 9th March 1927. Learned Counsel for the plaintiff-appellant relies on the provisions of Order 34, Rule 4 which directs that the preliminary decree in a suit for sale shall be to the effect mentioned in Rule 2, Clause (a), etc. Clause (a) provides that an account should be taken of what was due to the plaintiff at the date of the decree for the principal and interest on the mortgage. The wording of this rule is imperative and it directs that an account of the interest on the mortgage should be taken at the date of the decree and that interest will run for six months subsequent to that date which is allowed for payment under Sub-rule (c). Learned Counsel refers to Rule 11, but, it does not appear to me that Rule 11 gives the Court discretion to order a; less amount of interest for this period. For the respondent reference was made to Mohammad Ali Mohammad Khan v. Ramzan Ali. 1921 P.C. 100. But that ruling dealt with a usufructuary mortgage and not with a simple mortgage and is not in point. For the appellant reference was made to a ruling of their Lordships of the Privy Council reported in Jagannath Prasad Singh v. Surajmal Dalal 1927 P.C. 1. This ruling appears to be in point and it states that the rate of interest to be awarded is the contractual rate for the period down to the date fixed for redemption under Order 34, Rule 2. Following this ruling I hold that the plaintiff has a good claim and accordingly I allow this second appeal with costs throughout and I direct that the decree shall be amended to specify that the contractual rate of interest should be paid from the date of suit up to six months from 13th May 1931.

2. As no authority has been shown for the respondent, I do not grant permission for a Letters Patent appeal.


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