R.P. Mookerjee, J.
1. The principal point raised in this appeal on be half of the plaintiffs is whether they are entitled to interest pendente lite in terms of the contract from the date of the filing of the suit till the date of redemption. The facts are all admitted. The plaintiffs filed the suit for enforcing a mortgage executed in October, 1945, the principal amount being Rs. 5000/-and the rate of interest stipulated 8 per cent, per annum The plaintiffs claimed the principal amount together with interest which had accrued up to the date of the suit as also future interest and interest pendents lite at the rate mentioned in the mortgage bond as well as costs. Though the defendant had denied in the written statement that he had borrowed from the plaintiffs the principal amount or created the mortgage, at the time of the trial such defence was not pressed. The only point raised by the defence was about the number of instalments which the Court should allow for the payment of the decretal amount. He pleaded for an annual instalment of Rs. 500/-
2. The learned Subordinate Judge decreed the amount as claimed in the plaint, viz., Rs. 6933/- i. e., with interest calculated up to the date of the suit. There is no mention either in the judgment or in the decree of the claim for the payment of interest pendente lite. The decretal dues Were to be paid in annual instalments of Rs. 1000/- each. Costs were also allowed.
3. The mortgage was executed in October, 1945, after the Bengal Money-Lenders Act had come into force. Sections 30 and 31 of the Act do not refer to interest pendente lite in respect of a loan created after the Act came into force.
4. Reliance was placed on behalf of the appellant on Kusum Kumari v. Debi Prosad where it had been laid down that under Section 34 of the Code of Civil Procedure the contractual relationship between the parties came to an end with the decree, and the Court had power under this section to allow interest on the decretal amount until realization. Although the decision in that case was on certain provisions of the Sonthal Perganas Settlement Regulation, 1872, reference was made to the provisions of Order XXXIV of the Code of Civil Procedure, and it was observed that the mortgagee was entitled to interest pendente Site at the contract rate.
5. On the other hand, reliance was placed on behalf of the respondent on Jaigobind v. Lachmi Narain where with reference to certain provisions of the Bihar Money-Lenders Act, the Federal Court held that that use of the word 'may' in Section 8 of that Act indicated that the Court was not bound to exercise at least one of the powers and might well not exercise any of the powers at all; the language as it stood could only mean this, that the Court had the discretion to exercise all or any or none of the specified powers. Then with reference to Rule 11 of Order XXXIV of the Code of Civil Procedure, it was observed by Sulaiman, J. that that provision also gave a certain amount of discretion to the Court so far as interest pendente lite and subsequent interest were concerned; it was no longer absolutely' obligatory on the Courts to decree interest at the contractual rate up to the date of redemption in all circumstances, if there was no question of the rate being penal, excessive or substantially unfair within the meaning of the Usurious Loans Act, 1918.
6. An attempt was made before us to indicate that there was a conflict between the decision of the Judicial Committee and that of the Federal Court and we were invited to decide which of the two decisions would be binding on this Court at this stage. In our view, there is no real or substantial conflict so far as the question of allowing interest pendente lite is concerned. According to the Judicial Committee, the mortgagee is entitled to interest pendente lite. According to the decision of the Federal Court, there is a discretion given to the Court as to the extent to which such interest would be allowed. In our view, the Court is bound to decree pendente lite interest, it being left to the discretion of the Court at what rate it is to be allowed. The circumstances of each particular case have to be taken into consideration,
7. In the present case before, us, the rate of interest, as fixed in the contract was eight per cent, per annum. Ordinarily interest after the date of the decree is not to exceed six per cent per annum. The judgment-debtor in the present case admitted the mortgage at the time of trial and he has subsequent to the decree been paying the instalements fixed by the trial Court. Considering all the circusmtances, we think that the rate of interest from the date of the suit should be allowed at tour per cent, per annum. Such interest is to run until the date fixed for redemption. When a decree is passed under the Bengal Money-Lenders Act allowing instalments interest is to run until the instalments are paid or the decree-holder becomes entitled ,to pray for the passing of the final decree.
8. There is a cross-objection filed on behalf of the mortgagor. The only facts which were brought to the notice of the lower Court appeared in the deposition of the defendant. The plaintiff did not adduce any evidence. The circumstances as disclosed in the deposition of the defendant which remain uncontradicted would not justify fixing the annual instalment of Rs. 1000/- It has been stated before us that four instalments aggregating Rs. 4000/- have already been paid. The balance of the amount due will be payable in annual instalments of Rs. 750/-
9. A new decree is to be drawn up by the Court below Interest at four per cent, per annum will be calculated on Rs. 6933/-. The instalments already paid are to be credited on the respective dates of payment. The costs allowed by the Court below will be added to the amount due, but no interest pendente lite will run on the amount of costs. Out of the instalments already paid the amount of costs decreed will be adjusted and then towards the reduction of Rs. 6993/- The annual instalment of Rs. 750/- payable in January each year beginning from January, 1957, will be credited towards the balance due out of Rs. 6993/-. Such amount as would become due as interest on Rs. 6993/- the outstanding balance will be payable in two equal annual instalments after Rs. 6998/- is cleared.
10. The appeal and the cross-objection are accordingly, allowed in part. The decree of the lower Court is modified and a new decree is to be drawn up by that Court as indicated above. As success is divided the parties will bear their respective costs in this Court.
P.K. Sarkar, J.
11. I agree.