Richard Grath, C.J.
1. The question, as I consider, which we have to decide in this reference, is, whether under the circumstances stated the Judge in the first Court was bound to give interest at the rate agreed upon between the parties; or, whether the rate of interest after plaint and before decree is always under such circumstances in the discretion of the Court
2. I think that, having regard to Section 209 of the Procedure Code, the rate of interest after plaint is in the discretion of the Court.
3. It was, however, suggested during the argument that this case from the first should have been tried in accordance with the law laid down in the Tranfer of Property Act (Sections 86 to 88); and that this being a suit for sale of the mortgaged property, the Court, under Section 86, was bound to make a decree ordering that an account be taken of what would be due to the plaintiff for principal and interest on the mortgage, and for his costs of suit on a day within six months from the date of declaring in Court the amount so due; and also ordering that in default of the defendant paying as therein mentioned, the mortgaged property, or a sufficient part of it, should be sold, and that the proceeds of sale should be paid into Court, and be applied in payment of what should be found due to the plaintiff; the balance being paid to the defendant or any other person entitled to receive the same.
4. It seems to me, however, that as the plaintiff has brought the present suit in accordance with the old procedure before the Transfer of Property Act passed, without any objection being taken to that course by the other side; and as the Court below has dealt with the case upon that footing, and has given the plaintiff a decree for the immediate payment of the amount of the debt and interest; and as moreover both parties are still content with the case being dealt with on that footing, (subject of course to the question of the rate of interest) we ought not now to change the whole nature of the suit, and send the case back to the first Court to be tried upon a different principle.
5. Indeed this being a reference to a Full Bench on Regular Appeal, our duty, I consider, is simply confined to answering the question put to us, and when our answer has been given, the Court of Appeal will have to give the final decree.
6. I think, therefore, it is sufficient to say that the lower Court was not bound to give interest at the rate agreed upon in the mortgage-deed, but was at liberty to give any lower rate of interest it thought proper.