S. Mohan, J.
1. These two Civil Revision Petitions can be dealt with together The short facts are as follows : In O.S. No. 47 of 1970 on the file of the Subordinate Judge, Nagercoil, the appellant herein obtained a decree for a sum of Rs. 15,933-75 on a simple mortgage executed by one Thankammal, wife of the 1st defendant, Thankammal died. Hence the suit was filed against her husband, the first defendant, and her legal representatives, defendants 2 to 8. Defendants 9 and 10 were the subsequent encumbrancer. The hypotheca was brought to sale and the plaintiff herself purchased the same on 20th January, 1972, for a sum of Rs. 27,050. The decree-holdcr-plaintiff was allowed to set off the amount due under the decree and therefore a sum of Rs. 10,574 being the balance was deposited into Court. The first defendant filed E-A. No. 98 of 1972 for setting aside the sale. A conditional order was passed requiring him to deposit a certain amount. That conditional order was not complied with. Hence, the sale was confirmed on 6th September, 1973.The 4th defendant (the son of the mortgagor) filed another application to set aside the sale. That was dismissed on 16th April, 1974. This was in E.A. No. 326 of 1973. Aggrieved by the said order defendants 2 to 3 filed A.A. No. 331 of 1974 and the matter was compromised. As per the terms of the compromise, defendants 1 to 8 were required to pay a sum of Rs. 23,439.41 being the aggregate amount of the decree and the interest for the sale amount at 6 per cent. The said amount was required to be paid in three instalments within a period 6 of months. It was provided that if the amount was so paid, the sale in faver of the plaintiff would stand cancelled, in which event, the deeree-holder would be entitled to the refund of Rs. 10,574 deposited by her. It was further provided that if, for any reason, the Amount was not so paid, out of Rs. 8,400 being the amount due under the mortgage executed in his favour by the first defendant and his wife. The 10th defendant filed a similar application in E.A. No. 353 of 1973 for payment out of Rs. 2,194 due under the mortgage executed in his favour. The decree-holder filed E.A. No. 250 of 1975 for a sum of Rs. 5,590.25 being the interest due as per the terms of the compromise decree in A.A.O. No. 331 of 1974. All these three applications came to be dealt with by the learned Subordinate Judge of Nagercoil under a common order. Having regard to the fact that the amount in Court deposit could not satisfy all the claims, the question was whether the decree-holder could claim priority for the sum of Rs. 5,5g0.25 over the claims of the 9th and 10th defendants. The learned Subordinate Judge by his order dated 13th November, I975, allowed E.A. No. 352 of I973 and dismissed E.A. NO. 353 of 1973 and 251 of 1965. C.R.P. No. 3151 of Ig75 is against E.A. No. 352 of W73, while C.R.P. No. 3152 of 1975 is against E.A. No. 250 of 1975.
2. The only question that arises for my determination is whether the decree-holder could tack on that sum of Rs. 5,590.25 to his original loan and thereby claim priority for the said sum. In other words, whether the amount could be construed as due under the mortgage decree, in accordance with the provisions of Order 34, Rules 10 and 11, Civil Procedure Code.
3. Mr. S. Padmanaban, learned Counsel for the petitioner contends that having regard to the terms of the compromise in A.A.O. No. 331 of 1974,this amount is one which will form part of the mort gage decree and therefore priority could be claimed. The fact that neither the 9th defendant nor the 10th defendant were parties to that compromised would be of no consequence, since they since they are subsequent encumbrancers. The intention of the parties under the compromise was to provide for this amount and the additional sum which was intended to be a part of the mortgage decree, can also be recovered as if it is a part of the original the decree. In support of the submission, the 'earned counsel relies on Halsbury's Laws Of England, Volume 27 (Third Edition), paragraph 866 at page 436;
where the mortgate provides for interest up to the day fixed for payment, but not beyond, a contract for the continuance of the same rate of interest until payment is not implied., but subsequent interest wil be given by way of damages for breach of contract, and if the original rate of interest is not above five per cent, it will generally be adopted as a proper easure of damages for teh subsequent delay. This rule applics bot to proceedings on the convenant, and to accounts taken in redemption or foreclosure. In taking such accounts interest cannot be ascertained as damages, but it will be awarded on the same footing as consideration for allowing the loan to remain unpaid.
4. Mr. S. Ramaswami, learned Counsel for the respondents submits that even in a case whwere interest was awarded by a Court, it cannot be considered to be a secured debt. It that be so, this amount can be recovered only as an ordinary debt. In support of this submission he relied on Gyasi Ram v. Brij Bhushan Das : AIR1966SC1950 .
5. The important point to be noted here is the compromise decree provided payment of interst. But it cannot be construed as a claim arising out of the mortage. That was only by way of simple money decree. Of cource, if there is any surplus, the mortagee (decree-holder) can recover. Certainly it cannot be tacked on to the original loan under the doctrine of tacking, since that doctrine having been abolished in 1929 itself.
6. The passage relied on by Mr. S. Padmanabhan in paragraph 866 at page 436 of Halsbury's Laws of England, Volume 27 (Third Edition), is a no assistance to him since those were claims arising under the mortgage, but the position here is entirely different. The fact that the 9th and 10th defendants were not parties to the mortgage decree may be of no consequence in one sence, provided the amount claimed arose under the mortgage. But there it is not so.
7. In Gyasi Ram v. Brij Bhusan Das : AIR1966SC1950 . the scope of Order 34, Rule 7, Civil Procedure Code, came up for consideration:
A preliminary decree declared the amount due upto a certain date towards principal adn interest and also provided for certain rate of interest on a certaion sum from that date and directed, as required by Clause (c) of Order 34, Rule 17(1) a final decree to be passed in favour of a mortgager, provided he paid in the Court the amount found due before a certaion date. It also laid down that in the event of failure to so deposit the amount in the Court, a final decree for foreclosuere in favour of the mortgagee was to be drawn. The mortagor appealed and obteined a stay order requiring him to pay the amount due under the preliminary decree till the disposal of the appeal. The appeal was dismissed and the mortgagor deposited the amount due under the preliminary decree with interest but without the enhanced rete of interst. On the question whether failure to pay the enhanced rate of interest as per the undertaking could result in the passing of final decree for foreclosure:Held: that this extre amount which was to be paid on account of mortgagor's undertaking did not come within the expression 'in respect of subsequent costs, charges, expenses and interests'. The decree for foreclosure could not be passed for failure to pay this amount.
This case fully supports the respondent.
8. For these reasons, I hold that there are no merits in these civil revision petitions and they will stand dismissed. However, I make no order as to costs.