1. This is an appeal against an order passed by the Subordinate Judge of Bhagalpur in a proceeding in execution of a certain mortgage decree. The decree was granted by this Court in favour of the present appellants on the 28th January, 1908, for the recovery of Rs. 1,62,113 and on the 7th December 1907, the respondent Hari Prosad Singh deposited as surety for the judgment-debtors, Rs. 5,000 in cash as security for stay of execution under an order of this Court. This amount was to be deposited in addition to the security of the mortgaged property in order to cover any amount of the mortgage debt which might be found to be in excess of the proceeds realizsd by the sale of the mortgaged property. The mortgaged property was sold on the 17th November 1908 for Rs. 1,66,431, it having been advertised for sale for the realization of Rs. 1,65,305 odd annas. Thereupon, an application was made by the judgment-debtors immediately after the sale to have it set aside. This was finally refused and the sale confirmed on the 19th June, 1909. Prior, however, to the confirmation of the sale, the decree-holders on the 19th March, 1909, withdrew the sale proceeds from the Court. They at the same time, contended that, by the terms of the decree, they were also entitled to recover interest up to the date of realization and that as the sale proceeds fell short of the decretal amount and costs and interest up to that date, they were entitled to recover the balance from the Rs. 5,000 which had been deposited as security by the respondent Hari Prosad Singh, who stood surety for the judgment-debtors. The lower Court held that the decree-holders were entitled to interest from the date of sale up to the date when the total sale proceeds were deposited, that is to say for seven days after the sale. The lower Court further held that they were entitled to recover poundage fee from the judgment-debtors and the surety. The Court found the poundage fees to amount to Rs. 1,6 74-8 and the interest for seven days to be Rs. 389-2, and adding the total of these two sums, namely, Rs. 2,003-10 to the original decretal amount held the total amount recoverable to be Rs. 1,67,309-5-0, deducting therefrom the amount of the sale proceeds, namely Rs. 1,66,431,the Court found that the decree-holders were entitled to recover from the surety out of the deposit made by him in Court the sum of Rs. 878-5-6. Against this finding the decree-holders have appealed to this Court and the surety respondent has also put in a cross-objection.
2. In support of the appeal, it has been contended that the lower Court was wrong in not allowing interest in favour of the decree-holders up to the date when the sale was confirmed, or, at least, up to 19th March 1909, when the sale proceeds were taken out of Court; and in support of this contention, reliance has been placed on the case of Meghraj Marwari v. Narsingh Mohun Thakur 33 C. 846. It is contended on behalf of the decree-holders that, as in that case it was held that up to the date of the confirmation of the sale the mortgagee would not be entitled to take the money oat of Court, the date of realisation must, in this case, be interpreted to be the date when the mortgagees became entitled to actually handle the cash. On behalf of the surety respondent reliance has been placed on the case of Jogendro Nath Surcar v. Gobinda Chunder Addi 12 C. 252, and on an unreported judgment of this Court delivered on the 3rd May 1905 in appeal from Order No. 93 of 1904. Hemanga Chunder Basu v. Bidhu Mukhi Dasi. In both these cases, the opinion was certainly expressed that the view that the decree-holder was not entitled to take out the sale proceeds of the property sold in execution until the date of the confirmation of the sale was incorrect and reference was made to the provisions of Section 315 of the Code in support of that opinion. The decision of the first of these two cases, no doubt, did not turn directly on the determination of that point, though the decision of the other case appears to be mainly dependent on that point. On behalf of the appellants, it has been urged that, if this Court should be of opinion that there is a conflict between the decisions of this Court in the last mentioned cases and the case reported as Meghraj Marwari v. Narsingh Mohan Thakur 33 C. 846, we should refer the case to a Full Bench for decision. We do not, however, think that, in the present case it is necessary for us to adopt this course. As already noticed, reliance has been placed on behalf of the appellants on the decision of this Court reported as Meghraj Narwari v. Narsingh Mohan Thakur 33 C. 846, in support of the view that the sale proceeds could not be available for the satisfaction of the decree and the mortgagee would not be entitled to handle the cash up to the date when the sale was confirmed. In the present case, however, the mortgagees applied on the 19th March 1909 for permission to withdraw the sale proceeds and in fact, they withdrew them. In these circumstances it can hardly be said that the decision, in the case of Meghraj Narwari v. Nanshing Mohun Thakur 12 C. 252, can be taken to apply to the facts of the present case. Clearly, so far as this case is concerned, the decree-holders did not recognize that there was any restriction on them to prevent them from withdrawing the purchase money out of Court as soon as they wished to do so, And. so far as we can judge, there was no reason why the application that was made in March 1903 should not have been made at an earlier date or immediately after the purchase money had been deposited. In these circumstances, we are not prepared to differ from the view which the lower Court has taken that the appellants, the decree-holders, were, in the special circumstances of the case, entitled to interest only up to the date when the fall purchase money was paid, that is to say, for seven days as allowed by that Court.
3. It has been contended in support of the cross-objection that, under the terms of the petition under which the surety respondent deposited Rs. 5,000 as security in Court, he was only bound to make good the sum by which the sale proceeds of the property fell short of the decretal amount It is contended that, under the terms of his, bond, which it is urged should be construed as far as possible in his favour, he was riot bound to pay the poundage fees which the lower Court has directed should be considered as part of the decretal amount. In answer to this contention, reliance is placed first on the terms of this Court's decree and secondly, on the rules of this Court which provide for the payment of poundage fees at a sale by auction. The decree of this Court is to the effect that the mortgaged property should be sold and the proceeds of the sale, after defraying the expenses of the sale, should be applied towards the satisfaction of the decretal amount of the plaintiffs etc. The Rules of this Court clearly contemplate that poundage fees are to be taken as costs of the execution to be recovered from the judgment-debtors. We are of opinion that under the terms of the document under which the security was furnished the surety respondent cannot succeed in his cross-objection. Under the terms of this Court's decree, the proceeds of the sale will only be available for discharge of the decretal amount after defraying the expenses of the sale and, reading the document by which the security was tendered with the decree of this Court, we must hold that the surety bound himself to make good any sum by which the sale proceeds, after defraying the expenses of the sale, fell short of the amount decreed. We think, therefore, that this cross-objection must fail.
4. The result, therefore, is that both the appeal and cross-objection are dismissed. Each party will bear his own costs in this Court.
5. A Rule (No. 3.378 of 1909) was, however, obtained by the present appellants to restrain the surety respondent from withdrawing the Rs. 5,000 which are in deposit in the lower Court-pending the disposal of this appeal. In disposing of that Rule, we directed that the surety respondent be restrained from withdrawing the deposit for a period of three weeks from the date of our order, namely, the 24th November 1909, and we added that we would decide in dealing with this appeal whether or not the opposite party should be allowed interest at twelve per cent, per annum on the Rs. 5,000 for these three weeks in addition to the interest on that sum at twelve per cent, which had been allowed by the lower Court by its order passed on the 31st July 1909. We think that the surety respondent is entitled to recover interest at twelve per cent, for the period from 31st July 1909 up to the present date during which he has been prevented by the order of the Court at the instance of the appellants from withdrawing the balance of the Rs. 5,000 after deducting Rs. 878-5-6 for the payment of which he must be held to be liable. We, therefore, direct that an account be taken in the lower Court and that interest at twelve per cent, per annum be allowed to the surety respondent in this case who was the Opposite Party in Rule No. 3378 of 1909 on the sum of Rs. 4,121-10-6 for the period specified.
6. Let the record be sent down to the lower Court without delay.