1. One Atul Chandra Mukherjee, father of defendant 1, borrowed Rs. 500 from one Nirupama Debi on 10th June 1920 by mortgaging the properties in suit. This mortgage would hereafter be called the first mortgage. Thereafter he borrowed two sums of money on the security of the self same properties, namely, Rs. 5000 from the Sens (defendants 3 and 4), and Rs. 1600 from one Benode Behary Mukherjee (predecessor-in-interest of defendants 3 to 9). These two mortgages will hereafter be called the second and the third mortgages. On 17th March 1923, he borrowed a further sum of Rs. 2360 from the plaintiff, Sailendra, on the security of the self-same properties. This is the mortgage which is sought to be enforced in this suit. All these mortgages were simple mortgages. As the suit was instituted after the Bengal Money-lenders Act, 8 of 1933, the plaintiff limited his claim to Rs. 4720 only, being double the principal amount lent by him. In 1923, after the plaintiff's mortgage, the Sens sued to enforce their mortgage. They made the mortgagor, Atul and the mortgagee Benode parties defendants to the suit but omitted to implead the plaintiff, Sailendra, in their suit as they had. at the time no knowledge of the latter's mortgage. They obtained a final decree, in execution of which the mortgaged properties were sold and purchased by Amarendra and Anadi (defendants 10 and 11) in the benami of defendant 2. This sale was held on 12th January 1925. The said (defendants 10 and 11) thereafter paid up the dues of Nirupama who had also obtained a decree in a suit to which the plaintiff Sailendra was not a party. They took possession through Court on 11th February 1927, and are still in possession. The plaintiff filed his suit to enforce his mortgage on 17th September 1935. After giving particulars of his mortgage, he stated in the plaint that his interest had not been affected by the decree obtained by the Sens. He ignored Nirupama's mortgage but admitted his knowledge of the second and the third mortgages, and pleaded that he was not bound to redeem those mortgages, as the claims under them had already been barred by limitation as against him. He, however, made an alternative prayer to the effect that if he was bound in law to redeem those mortgages he may be given an opportunity to redeem them. The only contesting defendants were defendants 10 and 11. They disclosed Nirupama's mortgage and urged that the plaintiff was bound to redeem not only the second and the third mortgages but also Nirupama's mortgage, by paying to them the amounts due on these three mortgages. The learned Subordinate Judge by his decree dated the 30th April 1937, directed the plaintiff to pay to defendants 10 and 11 within a month of his decree the sums of Rupees 1673-6-0 and Rs. 12,375 on account of Nirupama's mortgage and the mortgage of the Sens respectively. On his paying the said sums of money to defendants 10 and 11 the plaintiff was to get a preliminary decree for sale for the total sum of the amounts thus paid to defendants 10 and 11 for redeeming Nirupama's mortgage and the mortgage of the Sens and the sum due to him on his own mortgage which was determined at the figure Rs. 6330-12-0. The learned Subordinate Judge found that Benode's mortgage was not enforceable against the plaintiff at the date of his suit. He accordingly did not allow defendants 10 and 11 to claim the dues on the said mortgage. Defendants 10 and 11 have not appealed for this part of the decree so we need not consider the claims under Benode's mortgage. The learned Subordinate Judge arrived at those figures in the following manner:
(a) Re: Nirupama's mortgage:- (i) Defendants 10 and 11 paidher Rs. 1050-0-0(ii) Interest at 6 per cent. per annum on the said amount from the dates of payment till the period fixed for re-demption by the plaintiff. Rs. 623-6-0 ---------------Rs. 1673-6-0(b) Re: Sens' mortgage:- (i) Price paid by defendants 10 and 11 at the auction sale held in execution of the Sen's decree Rs. 7130-0-0(ii) Interest at 6 per cent. per annum from the date of the auction sale till the period fixed for redemption by the plaintiff. Rs. 5245-0-0 ---------------Rs. 12,375-0-0(c) Re: Plaintiff's mortgage:-(i) For principal and interest up to the date of the suit limited under Section 4, Bengal Money-lenders Act, 8 of 1933 Rs. 4720-0-0(ii) Pendents lite interest till the period fixed for redemp-tion. Rs. 944-0-0(iii) Coats. Rs. 666-12-0---------------Rs. 6330-12-0
2. In view of the decision in Jnanendra Mohan v. Shorashi Charan ('22) 9 AIR 1922 Cal 23 the method on which the redemption money in respect of Nirupama's mortgages and the mortgage of the Sens have been calculated by the Subordinate Judge cannot be supported. As the plaintiff was not a party to the suit instituted by those mortgagees for enforcement of their mortgages the amount payable by the plaintiff for redeeming those mortgages must be calculated not on the footing of those decrees or of the price paid by defendants 10 and 11 at the court sale but of the securities. Subject to statutory restrictions that amount must be outstanding principal together with interest calculated at the bond rates up to the date fixed for redemption. As the Bengal Money-lenders Act, 10 of 1940, has now come into force, the applicability of some of the sections of that Act has to be considered in this appeal in fixing the amount of the redemption money and in determining the plaintiff's claim on his own mortgage. The learned advocate appearing for the plaintiff, appellant urges three points before us. They are (1) that the plaintiff is not bound to redeem the first two mortgages, as the claims on those mortgages were barred by time at the date of his suit, (2) assuming that the plaintiff is to redeem those mortgages, defendants 10 and 11 must account for the profits they have obtained since they went into possession till the time for redemption fixed in this suit, (3) and that the amount of redemption money in respect of those two mortgages must be fixed in terms of Section 30, Bengal Moneylenders Act, 10 of 1940. The learned advocate appearing for defendants-respondents 10 and 11 besides contesting the aforesaid points urges an additional point, namely that the claim of the plaintiff on his mortgage must also be limited in terms of Section 30, Bengal Money-lenders Act, 10 of 1940. For the purpose of deciding the first question the following principles must be kept in view. If a mortgagee leaves out a puisne mortgagee or a person interested in the equity of redemption and obtains a decree, the security is not merged in the decree and extinguished. If a sale takes place in execution of the decree of such a defectively constituted suit, the purchaser at the court sale acquires the rights of the mortgagee plaintiff, and of the defendant mortgagor provided that the equity of redemption was not entirely unrepresented in that suit. Whether the purchaser would acquire the rights of the mortgagee plaintiff at the sale or not, where the equity of redemption was entirely unrepresented in the suit is a point on which there may be a difference of opinion.
3. In Dhapu Bai v. Chandra Nath : AIR1938Cal524 the view has been expressed that the purchaser at the court sale in that case would not acquire even the mortgage lien of the plaintiff. In this case it is not necessary for us to express any opinion on that point. As the equity of redemption in the suit instituted by the Sens was not wholly unrepresented, the puisne mortgagee (the plaintiff) being only left out, defendants 10 and 11 through 'their benamidar (defendant 2) must be taken to have acquired the rights of the mortgagor and the mortgage lien of the Sens. By paying off Nirupama Devi they have acquired the mortgage lien of the latter on the principle of subrogation. The position therefore is that defendants 10 and 11 have acquired the rights of the first and the second mortgagees and the title of the mortgagor as it existed after the creation of the plaintiff's mortgage. The rights of the plaintiff as puisne mortgagee have not been destroyed by the court sale held in execution of the Sens' mortgage decree. The first question in the form in which it has been raised by the learned advocate of the appellant, however, does not arise on the facts established in this case, for, neither the mortgage claim of Nirupama Debi nor that of the Sens was barred on 17th September 1935 when the plaintiff instituted this suit. Their mortgages are dated 10th June 1920 and 9th March 1923 respectively. Defendant 2, the benamidar of defendants 10 and 11, made payments to Nirupama in the year 1927 on the basis of a writing signed by him. The Sens' mortgage was acknowledged in writing by the mortgagor on 17th March 1923, and thereafter the mortgagor made a payment on 11th November 1924, on basis of a writing signed by him. Hence on 17th September 1935, those two mortgagees' claims were alive. The question as to whether the plaintiff was bound to redeem those two mortgages by paying money to defendants 10 and 11 has, however, to be considered in view of the form in which the decree has been made by the learned Subordinate Judge, for in his decree he has made the payment of the money due on those two mortgages a condition precedent to the plaintiff getting a decree for sale for the dues of his own mortgage.
4. The cases which have some bearing on the said question disclose a clear conflict. 'We do not propose to deal with all the cases, some of which are noticed in Guruprosad Sukul v. Tarini Charan : AIR1938Cal634 . To illustrate the opposite view-points taken in the decided cases we propose to deal only with Gangadas Bhattar v. Jogandra Nath ('07) 11 CWN 403 and Jagat Chandra v. Abdul Rashid : AIR1935Cal139 , as these cases were exactly of the same type. In both the cases the first mortgagee sued on his mortgage, making the mortgagor a party defendant, but omitted to implead the puisne mortgagee whose mortgage had been created before the first mortgagee's suit. In execution of his decree he, the first mortgagee, purchased the mortgaged properties. The puisne mortgagee instituted his suit impleading the mortgagor only. He did not implead the first mortgagee as a defendant, and he was not bound to do so. He also purchased the mortgaged property in execution of his decree. The purchase of the puisne mortgagee was, however, prior in point of time to the purchase of the first mortgagee. In both the cases the mortgage of the first mortgagee was either a simple mortgage or a mortgage which did not give the mortgagee qua mortgagee the right to take possession of the mortgaged property. In both the cases the first mortgagee purchaser instituted the suit to recover possession from the puisne mortgagee purchaser and in both the cases the suit for possession was brought when the claim on the first mortgage was barred by time. In Gangadas Bhattar v. Jogandra Nath ('07) 11 CWN 403 the following propositions were laid down : (a) that the suit for possession was maintainable; the plaintiff was not bound, even if it was open to him to do so, to file a fresh suit to enforce his security against the puisne mortgagee who had been left out in his mortgage suit; (b) that he was entitled to possession, subject to the exercise of the right of redemption of the puisne mortgagee so left out. This last mentioned proposition amounts to this: that the plaintiff would get possession and his claim to possession could be defeated only by the defendant (puisne mortgagee) redeeming his first mortgage, although at the date of the suit the claims under that mortgage was barred by time against the puisne mortgagee. The propositions laid down in the Jagat Chandra v. Abdul Rashid : AIR1935Cal139 can be summarised thus : (a) that the suit for possession was not maintainable. The plaintiff qua mortgagee could not sue for possession for his mortgage being a simple mortgage did not give him the right to possession. Ha could only maintain such a suit in his character as purchaser of the equity of redemption of the mortgagor. But he did not acquire the interest of the mortgagor as his purchase at the court sale was later than the puisne mortgagee's purchase, (b) that no decree directing the puisne mortgagee to redeem his mortgage could be passed, for though the plaintiff could in law fall back upon his first mortgage, that could give him nothing as the mortgage was at the date of the suit for possession barred by time. If it had been necessary to decide point (a) noticed above in this suit we would have agreed with the view expressed in Jagat Chandra v. Abdul Rashid : AIR1935Cal139 , in preference to that expressed in Gangadas Bhattar v. Jogandra Nath ('07) 11 CWN 403. That view is based on a good principle and gets support from the judgment of the Judicial Committee in Bijai Saran v. Bageshwari Prasad ('29) 16 AIR 1929 PC 288. The second proposition formulated in the above eases is however material in this case. These two cases are distinguishable on the facts from the case before us, but the underlying principle has to be examined.
5. A puisne mortgagee is not under any obligation to redeem a prior mortgage. Ordinarily he redeems to safeguard his own interest in the mortgaged premises. The law confers, so to say, a privilege on him, which he may exercise for his own protection, by conferring on him a right to redeem the prior incumbranee in a case where he apprehends squeezing out by the prior mortgagee. The claim of the prior mortgagee increasing in amount as days pass exercises a compelling force on him. His self-interest prompts him to act. He sees that if he does not redeem in time, the claims of the prior mortgagee would swallow up the secured properties. When the claim of the prior mortgagee is barred, the motive force which impels the puisne mortgagee to redeem disappears. In a suit for possession of the type we are discussing where in the earlier suit for the enforcement of the prior mortgage the puisne mortgagee had been left out, the rights of the parties can be worked out in that suit only on the principle that where justice can be done, the Court would not drive the parties to another suit. The principle of avoidance of multiplicity of suits is the real underlying principle.
6. If at the date of the institution of that suit for possession the claim of the prior mortgagee was still alive, on the principle we have thus indicated, it would not be wrong to proceed on the footing as if a suit had been brought by the prior mortgagee purchaser to enforce his prior mortgage, on which he is entitled to fall back, for the decree he had obtained in his defectively constituted mortgage suit, had not extinguished his security by merging it into the decree. On that footing he would be entitled to a decree for foreclosure or sale which, if followed up, would eventually cut off the rights of the puisne mortgagee who had been left out in his original mortgage suit. In these circumstances a direction by the Court on the said puisne mortgagee to redeem is proper and accords with justice as it is made only with a view to afford him the last opportunity to save his own interest. It would not be justice, rather it would be the height of injustice, if a right or privilege be converted into an obligation and the said puisne mortgagee be directed to pay a claim on a mortgage which at the time is barred by time against him, asked to redeem not for protecting his own interest but for the purpose of conferring on another a bounty to which the law does, not entitle him. We accordingly hold what we have indicated as the second proposition enunciated in Jagat Chandra v. Abdul Rashid : AIR1935Cal139 to be sound. Applying the principle underlying that proposition to the present case, which we have before us, as indicated above, we hold that the decree of the learned Subordinate Judge which has made the redemption by the plaintiff of Nirupama's mortgage and of the mortgage of the Sens a condition precedent to the plaintiff getting a decree on his mortgage to be sound, as at the date of the plaintiff's suit those two mortgages were still alive.
7. The second point urged by the learned advocate for the appellant was not raised in the Court below. If that contention be given effect to now it would involve a remand for the purpose of enabling the parties to adduce additional evidence for establishing what the profits were which defendants 1(r) and 11 had received since they took possession. This is a reason for not allowing the appellant to urge the point for the first time here. Moreover, we are not inclined to give effect to that contention, though it gets an apparent, though not real, support from one of the reported eases. The learned advocate for the appellant has cited three cases before us in support of his contention : Sri Raja Papamma v. Sri Vira Pratapa ('96) 19 Mad 249, Shib Dasa v. Kalikumar Rai ('03) 30 Cal 463 and Jnanendra Mohan v. Shorashi Charan ('22) 9 AIR 1922 Cal 23. The first two cases are distinguishable. In the first case a wrong decree-a decree for possession and not for sale-was passed in favour of the mortgagee who held a simple mortgage. In pursuance of that decree he went into possession. His assignee was held accountable as a mortgagee in possession at the instance of the representative of the mortgagor. In the second case a mortgagee purchased the right, title and interest of the mortgagor at a court sale in execution of a money decree. It was held that the law as it then stood made the said sale void and that the right, title and interest of the mortgagor did not pass to him. The mortgagee purchaser took possession. He was held accountable for the profits as a mortgagee in possession. In both these cases possession could be attributed to him only in his character of a mortgagee. He did not occupy a dual character, one as mortgagee and the other as owner of the equity of redemption as the successor-in-interest of the mortgagor. In Jnanendra Mohan v. Shorashi Charan ('22) 9 AIR 1922 Cal 23, Jnanendra Mohan, however, filled a dual character, but his dual character would not, as we shall show here after, materially affect the principle on which we proceed to decide this point. That principle is that where a person has not the right to take and retain possession in one character, in his character of a simple mortgagee, but has the lawful right to take and retain possession in another character, in his character of the purchaser of the mortgagor's interest, the possession which he takes in course of law must be attributed to him in that character in which he could have lawfully taken and retained possession, e. g. in his character of the purchaser of the mortgagor's interest. (After stating the material facts in Jnanendra Mohan v. Shorashi Charan ('22) 9 AIR 1922 Cal 23, their Lordships went on to hold that, that case did not militate against the principle they had laid down, for though Jnanendra Mohan filled a dual character the collection of rents and profits by him in the manner indicated in that case could not be attributed to him in the lawful rights as purchaser of the interest of the mortgagors and proceeded.) In the case before us, defendants 10 and 11 in their character as the purchaser of the Sens' mortgagee rights had no legal right to collect the rents and profits, because the Sens' mortgage was a simple mortgage, but as the purchasers of the right of the mortgagor they had the lawful right to do so. The collection of rent and profits by them must therefore be attributed to them in that character in which they could have lawfully collected them, on the principle that law presumes against misconduct omnia prasumuntur rite esse acta'. As a mortgagor who gives a simple mortgage is entitled to retain possession and to enjoy the rents and profits of the mortgaged properties and is not accountable for those profits to the mortgagee, defendants 10 and 11 are not accountable to the plaintiff, the puisne mortgagee, for the profits they had received from 11th February 1927, when they were put in possession by the Court on the basis of their sale certificate. We accordingly overrule the second point urged before us by the appellant's advocate.
8. The third point raised by him and the point raised by the respondents are of first impressions. They primarily depend upon the following questions: (a) whether the puisne mortgagee is a borrower within the meaning of Bengal Act, 10 of 1940; (b) whether the purchaser of the equity of redemption is a borrower within the meaning of the said Act. If these questions are answered in the affirmative Section 30 of Act 10 of 1940, hereafter to be called the Act, would apply. In that case a further point would arise, namely whether pendente lite interest can be awarded in the decree, where at the date of the institution of the suit the claim of the creditor together with the payments already made equals or exceeds double the principal of the loan. The word borrower has been defined in S.2, Sub-section 2 of the Act. We will call the person who took the loan as the 'original borrower 'to distinguish him from persons who by reason of the definition or otherwise can be placed for the purpose of the Act on the same footing as he. Without any definition of the term borrower, the heir and the legal representative of the original borrower would have been entitled on settled principles of law to the reliefs given under the Act to the original borrower. They are the successors-in-interest of the original borrower in the fullest sense of the term, for they succeed both to his property and to his liabilities, though those liabilities can be enforced against them only to the extent; of the assets that have devolved on them from the original borrower. But the Legislature cannot be taken by the definition in Section 2 (2) to have included within the term borrower only the heir of the legal representative of the original borrower. A definition was not necessary, if that was the only purpose. The definition, however, is meant to be illustrative and not exhaustive as the word 'include' indicates. In the case of an unsecured loan the heir or the legal representative, as the case may be, is the only person who can come within the term borrower, for in that case no other person can be compelled even indirectly through pressure to discharge the loan.
9. From what we have said above it is clear that the Legislature intended to include within the term borrower a larger category of persons than the heir or the legal representative of the original borrower. Those persons must have the essential attributes of a borrower, though they may not have all the attributes of the original borrower. The liability to repay the loan, not necessarily personally is such an essential attribute. The personal liability to repay is ordinarily a liability of the original borrower, but it is not essential or fundamental for the original borrower may exclude it by contract, or by entering into the transaction of the loan in a particular form which excludes personal liability, e. g., by executing a mortgage by conditional sale. If therefore the loan incurred by the original borrower can be recovered from the property of a person or from an interest in property belonging to that person, which property or interest he had acquired from the original borrower, he would have the essential attributes of a borrower. The word 'successor' used in Section 2 (2) does not mean only the person who acquires through inheritance but includes a person who by any legal mode acquires an interest in property or the property of another. Because the loan incurred by one cannot be recovered from another, except from the property or interest in property of the former which had passed to the latter the Legislature used in the said definition the word interest. It did not bring to the forefront the idea of the transmission of the liability, because that idea is implied in the very word borrower. In the case of a secured loan the purchaser, whether by private treaty or at a sale in invitem of the mortgagor's interest, a lessee from the mortgagor who took the lease after the mortgage, a puisne mortgagee, and any person who derives an interest in the mortgaged property which is affected by the mortgage, would accordingly come within the definition of borrower, for the loan can be realised from what belonged to them. By indirect pressure, e. g., by a threat to sell their interest, they can be made to pay what the mortgagor had borrowed and if they do not eventually pay, the payment to the creditor would be made through the process of Court from out of their property or their interest in the property which they had acquired from the mortgagor. We accordingly hold that a puisne mortgagee vis a vis the prior mortgagee is a borrower within the meaning of the Act, as also the purchaser of the mortgagor's right is vis a vis the mortgagee or mortgagees.
10. We cannot give effect to the contention of the learned advocate for the respondent that on the principle formulated in Narayanachari v. Annamalai Chettiar ('40) 27 AIR 1940 Mad 61, a puisne mortgagee vis a vis the earlier mortgagees cannot be considered to be a borrower. In that case it was held that a puisne mortgagee who by the decree had been directed to redeem the first mortgage was not in debt within the meaning of Section 3 (iii), Madras Agriculturists' Belief Act, 4 of 1939, as he was under no liability under the decree which had only conferred a privilege upon him, the privilege of freeing his security from the claims of the first mortgagee, and so could not maintain an application under Section 20 of the said Act. The said section provides for stay of execution by the executing Court pending the result of an application made or to be made under Section 19 of the said Act by an agriculturist judgment-debtor for the revision of a decree for the payment of a debt, by the Court which passed the decree. The provisions of Section 20 of Madras Act, 4 of 1939 are not pari materia with those of Section 30 of Bengal Act 10 of 1940. The acceptance of the view expressed in Narayanachari v. Annamalai Chettiar ('40) 27 AIR 1940 Mad 61 in a case arising under Act, 10 of 1940 would lead to manifest absurdity, for, in that case, it may be that two different amounts will have to be fixed in a preliminary mortgage decree in a suit filed by the first mortgagee against the puisne mortgagee and the mortgagor, to which Act 10 of 1940 is applicable one, and a larger amount, in case the puisne mortgagee chooses to redeem the first mortgage and another, a lesser one, in case the mortgagor chooses to do so.
11. As the case before us is a suit to which Act 10 of 1940 applies by reason of S.2 (22) read with Section 2 (21) the plaintiff as the puisne mortgagee is entitled to the benefit of Section 30 of the Act in respect of the claims on Nirupama Debi's mortgage and of the mortgage of the Sens which have passed to defendants 10 and 11, as those loans had been incurred before the Act (Section 29, Sub-section 2). Defendants 10 and 11 as purchasers of the interest of the mortgagor are entitled to the benefit of that section in respect of the claim of the plaintiff as mortgagee. As Nirupama Devi's mortgage was for Rs. 500 and as the mortgagor had paid her Rs. 20 defendants 10 and 11 can obtain from the plaintiff Rs. 980 only. The amount borrowed from the Sens was Rs. 5000. Rupees 2500 had been paid by the mortgagor. Defendants 10 and 11 can accordingly get a decree for Rs. 7500 for this mortgage. These figures must be substituted for the corresponding figures mentioned in the learned Subordinate Judge's decree. These amounts will not carry any interest in view of Section 31 (a) of the Act. The case in Ratan Chandra Gupta v. Nirmal Chandra Neogy ('40) 45 CWN 13 is distinguishable, for the appeal before us is against the decree itself. It has been urged before us that the sum for which the plaintiff has got a decree from the learned Subordinate Judge on his own mortgage cannot be touched or reduced by us, as defendants 10 and 11 have not filed any appeal or memorandum of cross-objections from that part of the decree. In support of that proposition, reliance has been placed by the learned advocate of the appellant on the ease in Gopal Ukera v. B.N. Ry. Co. Ltd. : AIR1933Cal165 . We are not pressed by that decision, because, hearing as we are an appeal from the decree in a suit to which the Act applies, we have a duty imposed on us by the Legislature to release the borrower of all liability in excess of the limits specified in Sub-sections (1) and (2) of Section 30 of the Act (Section 36, Sub-section (1) (c) and Section 36, Sub-section (6) (b)).
12. The only other question that remains for decision is whether the plaintiff can get pendente lite interest. He had advanced Rs. 2360. At the date of the suit his claim exceeded double the said amount but he limited his claim in the plaint to Rs. 4720 which is exactly double of that amount. The learned Subordinate Judge has given a decree for that sum plus Rs. 944 as pendente lite interest. In support of his client's claim to the pendente lite interest the learned advocate of the appellant has drawn our attention to the ordering portion of the Federal Court decision in Jagadish Jha v. Aman Khan , where in a case coming under the Behar Money-lenders (Regulation of Transactions) Act 7 of 1939, pendente lite interest was given. That case does not help us, because in S.1, of the Behar Act, the right to pendente lite interest has been preserved by necessary implication. That section provides that no Court shall
pass a decree for an amount of interest for the period preceding the institution of the suit, which together with amount already realized as interest through Court or otherwise, is greater than the loan advanced.
13. Section 30, Sub-section (1) (a) of our Act is mandatory. The borrower is not liable to pay in any circumstances more than twice the amount of the original loan. Sub-section (1) (b) of that section contemplates a preliminary mortgage decree by using the phrase 'date up to which such liability is computed,' and states in effect that pendente lite interest calculated up to the period of grace fixed in the preliminary mortgage decree cannot be given where the amount of interest would exceed the principal of the loan outstanding on that date. That provision indicates that if the amount of interest at the date of the institution of the mortgage suit be equal to or exceeds the principal, pendente lite interest cannot be awarded. The sum of Rs. 944 awarded by the Court below as pendente lite interest up to the date of grace must be deleted from the lower Court's decree. The plaintiff's claim thus stands decreed for Rs. 4720 plus Rs. 666-12-0 for costs of the lower Court. To the extent indicated above the decree of the lower Court is modified. As the success of the parties is divided and as the questions we have dealt with could not be raised in the lower Court, as Act 10 of 1940 had not then been passed, we direct the parties to bear their respective costs of this appeal.