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Siba Prosad Das Chaudhury Vs. KazimuddIn Sarkar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in65Ind.Cas.709
AppellantSiba Prosad Das Chaudhury
RespondentKazimuddIn Sarkar and ors.
Excerpt:
mortgage suit - decree--interest pendent lite--suit whether pending during existence of an ex parts decree obtained earlier in suit but set aside--costs--plaintiff's lashes. - 1. the courts below have disallowed interest from the date of the ex parte decree, i.e., from the 14th august 1903 up to the 12th february 1916, the date on which the ex parte decree was set aside. the learned district judge was of opinion that the suit was not pending between the date of the ex parte decree and the date when that decree was set aside.2. we do not see how it can be said that the suit was not pending during that period, when the ex parte decree was set aside subsequently. it is not so hard upon the defendant as it seams at first sight; because the defendant did not offer to pay up any money during this period and the rate of interest in two out of the three bonds was not at all high, being only 6 and 8 per cent. per annum respectively. the fact that the delay in the final.....
Judgment:

1. The Courts below have disallowed interest from the date of the ex parte decree, i.e., from the 14th August 1903 up to the 12th February 1916, the date on which the ex parte decree was set aside. The learned District Judge was of opinion that the suit was not pending between the date of the ex parte decree and the date when that decree was set aside.

2. We do not see how it can be said that the suit was not pending during that period, when the ex parte decree was set aside subsequently. It is not so hard upon the defendant as it seams at first sight; because the defendant did not offer to pay up any money during this period and the rate of interest in two out of the three bonds was not at all high, being only 6 and 8 per cent. per annum respectively. The fact that the delay in the final disposal of the suit took place owing to the laches of the plaintiff should, however, be taken into consideration in dealing with the question of costs.

3. We are accordingly of opinion that the plaintiff should get interest at the rates stipulated for the entire period during which the suit was pending but that each party should bear his own costs in all Courts, and it is ordered accordingly.


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