1. This appeal arises out of the action taken by the plaintiffs who obtained a decree nisi on their mortgage, on the 12th February 1905. The period of grace allowed by that decree expired on the 12th August, 1906.
2. The action taken by the plaintiffs was based on certain observations made by this Court in a judgment, in appeal from order No. 368 of 1907, bearing date the 5th December, 1907, to which a member of the present Bench was a party. [The decree nisi is under appeal to the Privy Council at the instance of the defendants-appellants before us.] The observations had reference to a decree absolute not haying been prepared as a necessary supplement to the decree nisi of the 12th February 1906. This Court observed: 'We can only construe the decree without adding to or subtracting from it, though the plaintiff may yet take the necessary steps to have a proper decree drawn up by a tribunal competent to do so.' This judgment, also, we may observe, is under appeal to the Privy Council at the instance of the plaintiffs.
3. The plaintiffs, therefore, have pursued a two-fold remedy. Their application to the Court below as to have a final decree drawn up following the order absolute for sale made by the Court of the Subordinate Judge, on the 31st of August 1906, and they prayed that interest after the 12th August 1906 should be given at the bond rate of Rs. 7-8-0 per centum per annum; and not at the Court rate of Rs. 6 per centum per annum. The Subordinate Judge has directed a final decree to be drawn up following the order absolute for sale, and he has directed further interest to run from the 13th August 1906, at the rate of 6 per centum per annum until actual realization.
4. The defendants being dissatisfied with this decision presented an appeal which, after certain preliminary proceedings, has now come before us as an appeal from an original decree; and the substantial contention raised is the one that was added this day in accordance with the application made to us. That contention is that at any rate the decree appealed against in so far as it awards a decree for a larger amount than what is payable to the decree-holders under the decree nisi is erroneous and should be set aside.'
5. The point is this that if the further interest at the rate of 6 per centum per annum be held to be not payable, the judgment-debtors, appellants would be exonerated to the extent of Rs. 78,000, that sum being, as we understand, the additional liability imposed owing to the direction that decree will bear interest at the Court rate after the expiration of the period of grace. The question, therefore, is whether, in making a decree absolute in terms of Section 89 of the Transfer of Property Act, it is open to the Court to insert any provision for further interest which was not made in the decree nisi.
6. It is contended by the learned Vakil for the appellants that the decree absolute must, in effect, be a reiteration, without any variation, of the decree nisi.
7. On the other hand, the learned Counsel for the plaintiffs has relied upon the judgment of this Court, dated the 5th December, 1907, and the decisions of their Lordships of the Judicial Committee in Sunder Koer v. Rai Sham Kishen 34 C. 150 at p. 161; 34 I.A. 920; 4 A.L.J. 190; 11 C.W.N. 249; 5 C.L.J. 106; 17 M.L.J. 43; 9 Bom. L.R. 304; 2 M.L.T. 75 and Maharaja of Bharatpur v. Rani Kanno Dei 23 A. 181; 28 I.A. 35 at pp. 43; 45.
8. We understand the established practice of this Court to be that any direction for further interest at 6 per centum per annum is always inserted in the decree nisi. The cases to which our attention has been called are cases of that description; that is to say, where further interest may be inserted in the decree nisi either in accordance with the established practice of the Court or with reference to Section 209, Civil Procedure Code. Those cases dealt with the obvious omission in Section 88 of the Transfer of Property Act as to provisions for such further interest. They did not deal with the question whether Section 209, or the established practice of the Court, might be called in aid of the decree absolute when it is prepared under Section 89 of the Act. An application of Section 209, at any later stage would be attended with considerable difficulty; because the Court, in the exercise of its discretion may allow interest not only from the date of the suit to the date of the decree, but also from the date of the decree to the date of payment, such further interest being permissible, when specified, under Section 209, Civil Procedure Code.
9. The present case is of a peculiar kind; because the plaintiffs have appealed from the decision of this Court in which the suggestion was made that they might yet take the necessary steps to have a proper decree drawn up by a tribunal competent to do so. The whole matter is before the Privy Council at the instance of the plaintiffs in their appeal, and it may be open to the plaintiffs to put in cross-objections in the other appeal of the defendants and so to have any defects or omissions rectified in the decree nisi.
10. We are, therefore, of opinion that the Subordinate Judge was not at liberty to draw up a final decree which was substantially different from the decree nisi, in that it imposed an additional liability on the defendants to the extent of Rs. 78,000. We think that the functions of the Court in drawing up a decree absolute are more or less ministerial, and that being so, we must allow this appeal and set aside the decree absolute for sale of the Subordinate Judge.
11. The respondents other than the plaintiffs, have been discharged from the category of respondent. The plaintiffs must pay the costs of the appellants in both Courts.