1. This is a suit between Hindus on a mortgage to secure the repayment of a loan with interest. There is a second mortgage which was executed in favour of the second defendant, but no question arises as to that mortgage.
2. The decree, so far as it relates to the plaintiff, directs an account to be taken of what is due to him for principal and interest, the latter to be computed at the contract rate for six months. It then directs that upon payment within six months of what shall be due for principal and interest, and allowed on taxation for costs, with interest on such costs at six per cent, per annum, the property under mortgage be retransferred : but that in default of payment the interest computed at the contract rate for six months be added to the principal sum, that thereafter interest be computed on the aggregate amount, that the property under mortgage be sold, that the sale proceeds be paid into Court and applied first in payment of the amount payable to the plaintiff under the decree for principal, interest and costs with interest thereon.
3. The Registrar took the account, and finding that the interest exceeded the principal sum, he allowed for interest a sum equal to the principal sum, and disallowed the rest under the rule of damdupat. The report of the Registrar was accepted by the parties.
4. Default in payment having been made, a final order for sale was obtained, under which the property was sold by the Registrar, and the sale proceeds were paid into Court to be applied as directed by the decree. The plaintiff, as first mortgagee, being entitled to be paid in priority, has applied for payment of the principal and interest allowed in the report, with interest on the aggregate amount at six per cent, and also of the taxed costs with interest thereon at six per cent.
5. The application is made on summons to the second mortgagee who has appeared. The mortgagor was not served with the summons and has not appeared.
6. In support of the application the case of Balkrishna Bhalchandra v. Gopal Raghunath I.L.R. 1 Bom. 73 was cited. In that case the plaintiff obtained a money decree with interest. After some years, application was made for execution. The interest payable under the decree exceeded the principal sum and the question was whether the amount of the excess should not be disallowed under the rule of damdupat. The Court held that the rule of damdupat did not apply to interest recoverable in execution.
7. In the present case the rule of damdupat has been applied, and there is no question that it has been rightly applied to the interest accruing on the mortgage debt both previous to and during the period of six months allowed for redemption, notwithstanding the form of the decree-Nobin Chunder Bannerjee v. Romesh Chunder Ghose I.L.R. 14 Cal. 781. But it is contended that this should not prevent effect being given to the decree so far as it directs that at the end of six months the interest due be added to the principal sum, and that thereafter interest be computed on the aggregate amount at six per cent. This direction as to the allowance of interest at the contract rate on the aggregate amount is a usual direction inserted as of course in all decrees for an account in mortgage suits without having in view the rule of damdupat. If this form of decree does not prevent the application of the rule to the interest accruing due during the period of six months, it is difficult to see why it should prevent the further operation of the rule so as to admit of interest being computed after the period of six months on the aggregate amount of principal sum and interest allowed in the report. It appears to me that when the rule of damdupat is once applied in any account, directed to be taken by the Court, and interest equal in amount to the principal sum has been allowed in the account, the application of such rule has the effect of preventing the allowance of any further interest, not only for the period of six months allowed for redemption, but also subsequently without limitation of time.
8. Interest on the taxed costs of suit stands on a different footing, but that has been allowed in the report and is not in question.
9. This view of the operation of the rule of damdupat appears to have been taken by the Bombay Court in the case of Ramchandra Mankeshwar v. Bhimrav Ravji I.L.R. 1 Bom. 577, 580.
10. There will be an order in terms of the summons except as to further interest.