1. These are two connected appeals from the same judgment and decree of the District Judge of Rajsamand, dated the 28th of August, 1948. Appeal No. 46 is by Taru Lal and others who are defendants, and appeal No. 47 is by Mangi Lal and Meera Lal who are plaintiffs.
2. The plaintiffs brought their suit under Order XXXIV, Rule 14. Their case was that they were sub-mortgagees of the defendants. They had on an earlier occasion filed a suit for the money due to them and had obtained a decree for Rs. 1,753/6/9. In that suit, however, there was no prayer for sale on the basis of the sub-mortgage and, therefore, no decree for sale under Order XXXIV had been passed. When the earlier decree was put into execution, the plaintiffs wanted to put the property to sale. They were then met with the objection that the property could not be put to sale as there was no decree under Order XXXIV for sale in their favour. This dispute was taken up to the High Court of Udaipur. The High Court decided that the decree could not be executed by sale of the property and directed that if the plaintiffs wanted to sell the property, they should file a suit under Order XXXIV, Rule 14. Thereupon, the present suit was filed. While filing the suit, the plaintiffs also claimed Rs. 485/9/3 as interest. It may be mentioned that the previous decree for Rs. 1,753/6/9 did not allow any interest after the date of that decree. The trial Court gave a declaration to the effect that the property was saleable under Order XXXIV, Rule 14 in order to pay up the amount of Rs. 1,753/6/9. It dismissed the claim with respect to further interest which was claimed. Both parties appealed from this decree. The defendants' case was that as they had deposited a sum of Rs. 1,627/- after the decree in the previous suit, no decree for sale should have been passed against them. The case of the plaintiffs was that they were entitled to interest. The appellate Court dismissed the appeal of the defendants and affirmed, the decree for sale. Further, it allowed the appeal of the plaintiffs in part and gave them a further sum of Rs. 175/- as interest from the date of the decree till the date of the deposit as damages.
3. Both parties have again appealed to this. Court. The defendants have claimed that no decree for sale should have been passed against them and that the sum of Rs. 175/- should not have been allowed to the plaintiffs as interest byway of damages. The plaintiffs, on the other hand, have claimed that they should be allowed the full interest which they had claimed viz., Rs. 485/9/3.
4. We shall deal with the defendants' appeal first. This may be divided into two parts: one Relating to the decree for sale and the other relating to the amount of Rs. 175/- allowed as interest. So far as the decree for sale is concerned, we do not see how the defendants can resist that decree. Order XXXIV, Rule 14 specifically provides for cases where there was an earlier decree for payment of money only though the document on which the money was advanced might have been a mortgage-deed. Further, in this case, this point was in dispute before the High Court of Udaipur and that Court specifically held against the defendants and ordered the plaintiffs to file a suit under Order XXXIVV, Rule 14. Under these circumstances, it is too late for the defendants to contest that the decree for sale cannot be passed against them for the amount which was decreed in the previous suit viz., Rs. 1,753/6/9. The fact that they deposited a sum of Rs. 1,627/- about 21/2 years later, after the present suit had been filed would not deprive the plaintiffs of the right to get a decree for sale. If that money is still lying in Court, it can always be used by the defendants to pay up the amount' due from them when execution is taken out.
5. Next we come to the question of interest. Order 34, Rule 14 contemplates a suit in a case where a decree for the payment of money in satisfaction of the claim arising under the mortgage has already been obtained. Normally, in such a suit the plaintiff also prays for sale; but it may sometimes happen that the prayer for sale may be left out by inadvertence or otherwise. In such cases but for Order 34, Rule 14, the plaintiff would be barred from asking for sale of the property in view of the provisions of Order 2, Rule 2. As we read Order 34, Rule 14, it seems to us that it only provides for a decree declaring that the mortgaged property can be brought to sale for the decree for money which has already been obtained in satisfaction of the claim arising under the mortgage. It does not seem to us possible to reopen matters relating to interest and so on which must already have been decided when the decree for payment of money was passed in the previous suit. Learned counsel for the appellants relied on 'Indar Pal v. Mewah Lal', AIR (1) 1914 All 98, where the plaintiffs who had already obtained a decree for money and had been allowed interest at a certain rate, claimed higher interest when they filed the suit under Order XXXIV Rule 14. They were given interest at the higher rate. It seems that no objection was raised to this in the trial Court or in the memorandum of appeal to the High Court. The point seems to have been raised in argument and the learned Judges brushed it aside by observing that as the plaintiffs were entitled to sue upon their mortgage, they had a right to claim interest at the stipulated rate up to the date fixed for payment. Learned counsel for the plaintiffs, therefore, urges that this case is an authority for the proposition that further interest can be allowed in a suit under Order 34 Rule 14 although no interest might have been allowed in the previous money decree. With all due respect to the learned Judges who decided this case, we feel ourselves unable to follow it. We may point out that there is no discussion of the point in the judgment except a bare observation that the plaintiffs are entitled to interest at the rate mentioned in the mortgage-deed. Further, the Allahabad case fails to notice the provision of Section 34(2) of the Code of Civil Procedure. That sub-section provides that where a decree is silent with respect to the payment of further interest on such aggregate sum as has been decreed from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit, therefore shall not lie. This provision was for the first time inserted in the Code of Civil Procedure of 1882 by Act VII of 1888. The reasons why this was inserted was that in some cases before 1888, it had been held that interest though not awarded by the decree could be granted later on in execution or in a separate suit. This Act was passed negativing the law laid down by those cases. Learned counsel for the plaintiffs has cited these cases but we need not refer to them in detail in view of this provision. We are of opinion that the decree of the trial Court was correct and the lower appellate Court was wrong in allowing a further sum of Rs. 175/- as interest by way of damages to the plaintiffs. It follows from this that the plaintiffs appeal for a further sum as interest by way of damages must fail.
6. We, therefore, dismiss appeal No. 47 of 1950. We partly allow appeal No. 46 of 1950 and set aside that part of the decree of the lower appellate Court by which a further sum Rs. 175/- has been allowed to the plaintiffs as interest by way of damages, thus restoring the decree which was passed by the trial Court. Parties will pay and receive costs throughout in all the Courts according to success and failure.