1. This revision application is directed against an order of the Sub-Judge, 2nd Court, Alipore, dismissing an application under Sections 151 and 152 of the Civil Procedure Code for amendment of the decree drawn up in title mortgage suit No. 3/56 of that Court, on the ground that the decree had not been drawn up in accordance with the judgment.
2. The facts are briefly as follows: Opposite party No. 5 Braja Behari Roy with his two sons and two daughters who were opposite parties Nos. 1 to 4 borrowed Rs 30,000/-from Hindustan Co-operative Insurance Society Ltd. on 20th November, 1952, and executed a mortgage deed in favour of the Society stipulating payment of interest at 7 1/2% with quarterly rests, the mortgaged premises being the premises at 13/2, Swinhoe Street, in Ballyganj, Calcutta. No amount having been repaid on the mortgage, the Hindustan co-operative Insurance Society Ltd. filed on 6th January, 1956, the title mortgage suit No. 3/56 in the second Court of tne Subordinate Judge, Alipore, for the recovery of Rs. 37,853/2/-, that is the principal Rs. 30,000 interest calculated at the agreed rate upto the date of the institution of the suit. In the piaint, among others, the following prayers were made.
(a) A preliminary mortgage decree for sale for Rs. 37,853-2-0 with interest thereon @ 7 1/2 % per annum with quarterly rests from the date of filing of the suit till me date of preliminary decree.
(b) Further interest at the stipulated rate of 7 1/2% per annum with quarterly rests from the date of the preliminary decree to the date of the final decree and at Court rate on the amount decreed from the date of the final decree till realisation.
3. There was also a prayer for a direction that the defendant No. 5 was personally liable to pay the interest. But although the suit was ultimately heard ex parte, tne prayer for making defendant No. 5 personally liable tor the interest was rejected by the learned Subordinate Judge and the suit was decreed preliminarily ex parte against the defendant Nos. 1 to 5 with costs upto that stage. The suit was dismissed on contest against the Corporation of Calcutta who was made defendant No. 6, but we are not concerned with the Corporation of Calcutta in this case. 6 months' grace was provided in the order, and it was further mentioned that in default of payment of the decretal sum within the grace period, the plaintiff would be entitled to get a final decree in accordance with the law.
4. In the preliminary decree as actually drawn up, interest was calculated and included in the decree upto the date of the preliminary decree, and also for the 6 months of grace, but no interest after the expiry of the period ot grace till the date of the realisation was provided. Accordingly, the Life Insurance Corporation of India, which has succeeded to the interest of the Hindustan Co-operative Insurance Society Ltd., made the application for amendment or correction of the decree under Section 151 and 152 ot the Civil Procedure Code, by including the interest at 6% from the date of expiry of the period of grace until the date of realisation of payment. The application was heard by another learned Subordinate Judge, who held that as the ordering portion of the judgment said nothing about the interest from the date of the final decree upto the date of realisation, such interest must be held not to have been granted by the Court. Accordingly, the learned Subordinate Judge refused the prayer for amendment of the decree. II is against that order that the Life Insurance Corporation nas filed this revisional application.
5. Mr. Chandranath Mukherjee appearing for the petitioner has urged that since the learned Judge who passed the preliminary decree recorded the order 'the suit shall succeed in whole against the defendants Nos. 1 to 5 and shall be dismissed against the defendant No. 6' he must be deemed to have allowed all the prayers which were made against defendants Nos. 1 to 5.
6. As against that argument, it may be pointed out that one of the prayers made against defendant No. 5 was definitely rejected by the order of the learned sub-ordinate Judge. Further, even so far as the prayers la) and (b) are concerned which have been quoted aDove, it must be pointed out that for the interest subsequent to the date of the final decree the plaintiff did not pray for interest at a definite rate. It was only stated that interest at Court rate might be decreed from the date of final decree till the date of realisation. In accordance with the terms of Order 34 R. 11 interest at the rate that the Court deemed reasonable could have been decreed from the date by which the amount was declared due under the preliminary decree, that is, from the date of expiry of the period of grace allowed in the preliminary decree and not from the date of the final decree as prayed for. we are not however, concerned here with the discrepancy between the two starting points viz., the date of the final decree and the date of the expiry of the period of grace allowed for the payment. What we are now concerned with is that the prayer for the subsequent interest was not a prayer for interest at a definite rate. It was something left to the discretion of the Court. Although in many cases the Court allows such interest at 6%, there is no fixed rule, and the Court may allow the interest at the lower rate. Order 34 R. ll(b) provides that such interest is. to be allowed at a rate that the Court deems reasonable. Since the learned Subordinate Judge who passed the preliminary decree did not apply his mind to the consideration of the question at what rate such subsequent interest in terms of the Order 34 Rule ll(b) of the Civil Procedure Code should be allowed, it must be held that the decree is silent on the point and therefore in terms of Section 34(2) of the Civil Procedure Code, this interest must be deemed to have been disallowed, because Section 34(2) provides that where such a decree is silent with respect to the payment of further interest 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.
7. Mr. Chandranath Mukherjee has referred us to a decision by a Division Bench of this Court consisting of Chakraborty C. J. and D. N. Sinha J. in Civil Revn. No. 2971 of 1952, where in the ex parte order, granting a preliminary decree, the subsequent interest under Order 34 Rule 11(b) of the Civil Procedure Code was not separately mentioned, but it was held that there could be little doubt that me original order passed in the mortgage suit had the effect of allowing all the prayers contained in the plaint, that is, including the prayer for such subsequent interest from the date of expiry of the period of grace fixed for a payment. But on reading the judgment as a whole, it appears that in that particular case the plaintiff had asked for a decree for such subsequent interest at a definite rate viz., the rate stipulated in the mortgagee bond. Therefore, although the ex parte order in respect of the preliminary decree merely mentioned that the suit be decreed in full, it could be held that all the prayers made in the plaint regarding the interest, which were all prayers in respect of definite sums, had been allowed. In the present case, if we are to hold that the order that the suit snail succeed as a whole may be deemed to mean that all the prayers in Clauses (a) and (b) at least were allowed, the decree for subsequent interest would be a vague decree and could not be executed. It would be more appropriate to hold that the learned Subordinate Judge did not apply his mind to the question at all and so his order was silent in the point. Therefore, in terms of Section 34(2) of the Code this portion of the interest must be deemed to have been disallowed.
8. The result may be unfortunate for the decree-holder petitioner, but this cannot be helped in the circumstances of the case. This application therefore fans and is dismissed. In the circumstances, the parties will Dear their own costs in this Court.
9. Let the record be sent down expeditiousiy.
Bijayesh Mukherji, J.
10. I agree.