1. This is a defendant's First Appeal against the judgment passed on 13-3-1957 under Order 34 Rule 3 (Sub-r. 3 of R. 5?) Civil Procedure Code, by the District Judge Guna in Civil Original Suit No. 8 of 1954.
2. A preliminary decree was passed in the aforesaid case on 18-7-1955 by the District Judge Guna. The decree directed the defendant to pay, within four months of the date of the decree, a sum of Rs. 12,000/- for principal, the sum of Rs. 1,618/- for interest on the said principal and such interest as might become due during this period together with Rs. 1137-14-0 for the costs of the suit awarded to the plaintiff. The decree further directed that in default of payment of the aforesaid amount the plaintiff shall be entitled to recover the principal sum together with interest and costs by sale of the mortgaged property Or a sufficient part thereof and shall for this purpose he entitled to apply to the Court for a final decree for the sale of the mortgaged property.
3. The amount aforesaid having not been paid within the stipulated period, the plaintiff applied for a final decree to he passed. An objection was taken by the defendant that as no subsequent interest had been awarded to the plaintiff by the preliminary decree, the same could not be awarded at the stage of the final decree. The Court construed the preliminary decree to mean that interest had been awarded under it to the plaintiff till the date of realisation. The Court, therefore, directed that interest at -/6/- p.c. per mensem shall be paid by the de-fendant during the pendency of the suit and thereafter from the date fixed for repayment tillrealisation,
4. The questions which fall for consideration in the present appeal are: (i) whether the contents of the preliminary decree can be so construed as to imply therein a provision for interest being paid by the defendant from the date fixed for repayment till realisation and further (ii) If the preliminary decree cannot be so construed whether the Court could award such interest at the time of passing the final decree.
5. At the outset it is necessary to mention that the preliminary decree passed in the present case is not in accordance with form 5-A in Schedule 1 Appendix D of the Code of Civil Procedure. No specific mention is made therein re-grading interest from the date fixed for re-payment till realisation. The question is whether such a direction can be spelt out from the words used in Sub-clause (2) of Clause 2 of the decree which provides that in default of payment of the amount (mentioned in Clause 1) the plaintiff will be entitled to recover the principal sum due on the mortgage together with interest and costs, by the sale of the mortgaged property or a sufficient part thereof.
6. In the case of Subba Rao v. Satyanarayana-murthy, AIR 1953 Mad 948, it was held that subsequent interest could be payable under Rule 11 of Order 34 C. P. C. only if the Court had awarded it, by virtue of the power which it had, at the time of the passing o the preliminary decree. The decree passed in that case contained clauses in conformity with Clauses (ii), (iii) and (iv) of Form V of Appendix D in Schedule 1 C. P. C. Still it was held on a construction of the decree that the decree-holder had been denied any interest apart from 6 per cent interest on Rs. 5,852-3-0 till the date of re-payment.
7. In the case of Mst. Santi v. Mulkh Raj, AIR 1937 Lah 894, the preliminary decree left blank the place where, in the ordinary course, the rate of future interest till realisation would have been mentioned. But it stated that the proceeds of the property if put to sale would be applied in payment of the debt found due together with subsequent interest. It was held that it must be assumed that the Court did not allow any future interest and that the successor-in-office of the Judge while passing the final decree could not exercise the discretion vested in the Court by Order 34 Rule 11 C.P.C. since one could not know at what rate subsequent interest would have been allowed by the Judge who passed the preliminary decree.
8. In the case of Dwarkaprasad v. Umrao Mohammad, AIR 1931 Oudh. 47 it was held that'the duty of a Court passing a final decree for sale is in the first place to order the sale and in the second to direct that the proceeds shall go to the satisfaction of the preliminary decree. The law does not lay down that the final decree shall be read by itself and executed as such. Rather it prescribes for the execution of the preliminary decree'.
Their Lordships were in that case, however, satisfied that the preliminary decree directed paymentof future interest till the date of realisation. They,therefore, allowed interest till the date of realisation even though no mention about subsequent interest had been made in the final decree.
9. Sub-rule (1) of Rule 4 of Order 34 C. P. C. gives the details of a preliminary decree. Clause (4) in Form 5-A of Schedule Appendix D of the Code of Civil Procedure which applies to all preliminary decrees for sale in which the Court declares the amount due, makes mention about subsequent interest which may be payable under the provisions of Rule 11, Order 34 C.P.C. If no such interest is expressly granted it is to be considered as refused.
10. I am in respectful agreement with the view taken in the cases discussed above to the effect that it is for the Court passing the preliminary decree to decide if any interest after the date fixed for re-payment shall be payable by the mortgagor and if so at what rate.
11. It was observed by their Lordships of the Privy Council in the case of Sunder Koer v. Rai Sham Krishan, 34 Ind App 9 at p. 21 (PC) as follows:--
'A general accou.nt shall be taken once for all and an aggregate amount be stated in the decree for principal, interest and costs due on a fixed day and that after the expiration of that day if the property should not be redeemed, the matter should pass from the domain of contract to that of judgment and the lights of the mortgagee should thenceforth depend not on the contents of his bond but on the directions in the decree.'
12. It would thus follow that till the date fixed for re-payment the Court would ordinarily allow interest on the principal sum at the stipulated rate. But in so far as interest subsequent to the date fixed for repayment till realisation is concerned the Court passing a preliminary decree has a discretion in the matter.
13. It was no doubt observed by Chatterjee J. in the case of Udit Narayan Jha v. Jasoda Sahun Kalan, AIR 1918 Cal 151 'that the proper period for allowing such further interest would be when the decree absolute is made'. These observations were, however, made in the context of Section 209 of the old Civil Procedure Code. The final decree in the present case was made under -he provisions of Sub-rule (3) of Rule 5 of Order 34, C. P. C. which lays down as under:--
'(3) Where payment in accordance with sub-rule (1) has not been made, the Court, shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in Sub-rule (1) of Rule 4.'
14. It will be obvious from the aforesaid provisions that all that the Court passing the final decree for sale has to do is to direct that the mortgaged property, Or a sufficient part thereof shall be sold and that the proceeds of the sale be dealt with in the manner provided in Sub-rule (1) of Rule 4. These provisions nowhere lay down that it shall be competent for the Court passing a final decree to grant a relief as to subsequent Interest even if the same had not been granted inthe preliminary decree. It will appear from the facts of Udit Narayan's case, AIR 1918 Cal 151 (supra) that the order absolute passed in that case made no provision for any subsequent interest. No question could, therefore, arise as to whether subsequent interest could be allowed at the stage of passing the order absolute, even if no provision for such interest had been made in the preliminary decree.
It would thus follow that the observations made by the learned Judge in that case to the effect that the proper stage for allowing further interest would be when the decree or order absolute is made, are obiter in nature. On a plain interpretation o the provisions of Sub-rule (1) of Rule 4 Order 34 C. P. C. read in the light of Form. 5-A in Schedule 1 Appendix D of the Code of Civil Procedure there can be no room tor doubt that the proper stage at which the question whether subsequent interest after the date fixed by the Court for re-payment is to be allowed, has to be decided at the time of passing the preliminary decree. At the stage of passing the final decree all that the Court has to do is to direct the sale of the mortgaged property or a sufficient portion thereof and the application of the sale proceeds in the manner provided in Sub-rule (1) of Rule 4 Order 34 C. P. C.
15. In the case of Brij Raj Kishun v. Ramesh-war Singh Bahadur, AIR 1917 Pat 275 no specific mention was made in the preliminary decree about interest from the expiry of 'the day of grace' till realisation. Such interest was, however, granted in the decree absolute. Chapman J. observed while commenting on the legality of the final decree as under:--
'There can be no doubt that under the decisions of the Privy Council and the terms of the law the decree-holder was entitled to interest alter the day of grace.'
It would appear from the facts of that case that the objection as to the legality of the final decree was not raised at any stage prior to execution. The learned Judge, therefore, held that there having been no appeal against the final decree the executing Court could not entertain the objection. In a later portion of his judgment the learned Judge observed as follows:--
'The question of jurisdiction to make an order in the final decree for payment of interest after the day of grace is not free from doubt. There is, I understand, a practice in England that upon an application by a judgment-debtor for leave to pay after the day of grace, the Court may direct that he should pay interest up to the date of payment.'
16. Since the powers of the Court while passing preliminary and final decrees in mortgage suits have been laid down in the Code of Civil Procedure, it is not permissible to take resort to any English practice in order to vest the Court with the power to do a thing which the law does not provide for.
17. The aforesaid observations of the learned Judge were also not necessary for the decision of the case, inasmuch as the appeal was disposed of on the short ground that the mistake was notcapable of being objected to in the proceedings in execution of the decree absolute. Jwalapra-sad J. also in his concurring judgment dismissed the appeal on the ground that the final decree being explicit in its terms, the executing Court could be asked to modify or vary it in any way by construing in the light of the preliminary decree. It would thus be clear that the question as to whether the Court could at the stage of the final decree grant subsequent interest even though it had not been allowed by the preliminary decree, did directly arise for consideration in that case. The observations of the learned Judges on this point are, therefore, obiter in nature.
18. In the present case the preliminary decree merely contains a direction that in the event of the decretal amount not being paid within 4 months of the date of the decree the plaintiff will be entitled to recover the same together with interest and costs from the sale of the mortgaged property. The mere mention of the words ^^e; lwn** in this part of the decree cannot be interpreted to mean that the plaintiff was allowed interest after the date fixed for repayment. Such a result could be achieved only by making a distinct provision in the preliminary decree allowing interest at a specified rate from the date fixed for re-payment till realisation.
19. I am, on a careful consideration of the contents of the preliminary decree passed in this case, of the opinion that no provision was made therein for any interest subsequent to the date fixed for re-payment being payable by the defendant. I am further of the opinion that subsequent interest under rule 11 of Order 34 C. P. C. having not been granted under the preliminary decree, the Court was not competent to grant it at the stage of passing the final decree.
20. I would, therefore, allow this appeal and modify Clause (2) of the final decree as follows:
lwn nksjku ukfy'k rFkk vk;Unk rkjh[k18&11&1955 rd 'kjg eqdjZjkA izfr'kr izfrekl ls oknh izfr- ls ikus dkeq'rgd gksxkA
21. In the result this appeal is allowed with costs and the final decree passed by the lower Court is modified to the extent indicated above.
22. I agree.