1. This appeal is directed against a preliminary decree passed by the learned Subordinate Judge of Noakhali in a suit for ejectment of a mortgage (?) and for for other incidental reliefs. The mortgage-bond, on the basis of which the suit was instituted by the plaintiff-appellant in this Court, was executed on April 24, 1916; and it contained stipulations for payment of simple interest as well as for payment of compound interest at the rate specified, in certain events. An issue was specifically directed on this part of the case to the effect following:
Issue No. 2. What is the rate of interest agreed upon by the parties? Did the executants contract to pay compound interest? Can the plaintiff get compound interest as claimed on tae strength of the bond?
2. The stipulations contained in the mortgage bond, so far as the payment of interest was concerned, were these: 'We shall pay interest on it at the rate of Rs.1-12-0 percent, per month. We shall re-pay the entire amount of principal and interest(which will be) due to you within the month of Magh of the current year, which is the due date. Failing to repay within the said due date, we shall pay interest at the said rate up till the date of realization on the entire amount, either amicably or by suit and shall pay every year the annual interest calculated upon the said money. In default, the outstanding interest shall be added to the principal on the expiry of each year and we shall pay interest (thereon) at the said rate of Rs. 1-12 by way of compound interest. The Judge in the Court below, on a construction of these stipulations, gave effect to the defence in the suit, and held that the plaintiff was not entitled to get compound interest as claimed by him in the suit. A decree was passed in favour of the plaintiff, allowing his claim in part, in the form of a preliminary decree, as contemplated by law. The plaintiff has appealed to this Court.
3. The question for consideration in the appeal is one of construction of the mortgage-bond, on which the claim in suit was based, so far as the stipulations for payment of interest were concerned, which have been set out above. On a consideration of these stipulations, we are unable to hold, as has been held by the Judge in the Court below, that the bond is silent whether the compound interest at the rate of Rs. 1-12 is to run monthly or yearly or whether it is for each hundred rupees or otherwise; or that under Section 93 of the Indian Evidence Act evidence is not admissible to supply the defect and that the plaintiff, therefore, was not entitled to get compound interest. As has been indicated above, we are unable to accept this view of the mortgage-bond, having regard to the clear stipulations contained therein as to payment of interest and compound interest-In our judgment, the decision of the Court below is erroneous, on a proper construction of the mortgage-bond in suit, having regard to the clear stipulations as to payment of compound interest in certain events, which have undoubtedly happened. The plaintiff was entitled on the mortgage bond, to get compound interest as claimed by him in the suit; and a decree should have been passed in his favour for the realisation of the entire amount claimed in the suit by enforcement of the mortgage security evidenced by the mortgage bond, dated April 24, 1916, on the materials before the Court.
4. A point was raised in support of the appeal, that the Court below ought to have directed the inclusion of all subsequent costs, charge?, expenses and interest in the final decree to be applied for by the plaintiff in the event of the defendants failing to pay as mentioned in the preliminary decree.; It need only be stated that necessary directions are to be given in the matters mentioned, when the final decree in the suit comes to be passed by the Court below.
5. At the conclusion of the argument, a point was raised on behalf of the defendants respondents in the appeal, bearing upon the question of the applicability of the Bengal Money Lenders Act, 1933, to the case before us. The question was not raised before the Court below. In view of the position that the defendants-respondents have pressed this point before us, we have acceded to their prayer for sending the case back to the Court below for decision of the question of the applicability of the Bengal Money Lenders Act, 1933,to the present case. In the event of the Judge in the Court below coming to the decision that the provisions of the Bengal Money Lenders Act, 1933, have any application to the present case, liberty should be given to the plaintiff-appellant in this Court to amend his plaint, and to give further evidence for, the purpose of meeting the points that may be raised in support of the defence. The defendants will be at liberty to file additional written statements, if they are so advised. Our decision on the question of interpretation of the mortgage bond will have to be taken into consideration, when a decision is ultimately given by the Court below, after the question of the applicability of the Bengal Money Lenders Act, 1933,to the present case, has been considered in the light of the pleadings in the suit as amended according to the directions of this Court, and upon the further evidence that may be adduced in this case by the parties concerned.
6. In the result, this appeal is allowed; the decision and decree of the Court below are set aside, in so far as they concern the interpretation of the stipulations contained in the mortgage bond, which was the basis of the plaintiff's claim before the Court. The case is, however, remanded to that Court for a decision on the point raised before us by the defendants-respondents, to which reference has been made-above. A preliminary decree will be passed by the learned Judge in the Court below, in view of the decision arrived at by him on the consideration of the question of law raised before us.
7. The appellant is entitled to have his costs in this appeal; the hearing fee in this Court is assessed at five gold mohurs; further costs in the suit will be at the discretion of the Court below, when the preliminary decree is passed, after the directions contained in this judgment have been complied with.