1. This appeal by the appellants arises out of a suit filed by the plaintiff for a mortgage decree for a sum of Rs. 11,478 with pendente lite and future interest. The plaintiff Raghunath Prasad and the defendant No. 1 Ram Chandra Prasad are brothers. By a registered partition deed dated 2-4-1950 there was a final partition between them. There were certain transactions between the parties, the details whereof are not necessary to state here in view, of the scope of the present appeal at this stage and the arguments. Ultimately, the defendant No. 1 as the karta of his family executed a mortgage document (Ext. 2) in respect of a house in Sitamarhi town for a sum of Rs. 6,500 on 5-12-1951. A sum of Rs. 4,250 was received by him in cash and there was an adjustment of the balance amount. The plaintiff claimed to be a registered money lender and filed the suit for realisation of the dues under Ext. 2. The account mentioned at the bottom of the plaint indicate that besides the principal amount of Rs 6,500, interest at the rate of 6 per cent per annum was Vaimed from date of execution till the date of the filing of the suit. The other defendants impleaded in the suit were sons and a grandson of defendant No. 1.

2. The defendants admitted the transaction but pleaded payment of a sum of Rs. 4,700. It has further been said that if the accounting is done, nothing would be found due from the defendants. The payments, however, were denied by the plaintiff.

3. The trial court disbelieved the defence story of part-payment and decreed the suit for the full amount along with pendente lite interest at the rate of 6 per cent per annum with a direction that the total interest would not exceed the principal amount of Rs. 6,500 in any case.

4. The defendants appealed praying for dismissal of the suit and the plaintiff-respondent filed a cross-objection under Order 41 Rule 22 of the Civil P.C. claiming future interest at the rate of 9 per cent per annum. During the pendency of the appeal, the appellant No. 1 died and those of his heirs who were not already on record were substituted.

5. The appeal was placed for hearing before a Division Bench constituted by Mr. Justice B.D. Singh and Mr. Justice B.P. Jha. By separate judgements, they have held that defendant No. 1 had paid a total sum of Rs. 4,000 towards the dues, but their plea of payment of additional amount of Rs. 700 was not correct. Rejecting the argument addressed on behalf of the appellants that a sum of Rs. 4,000 should have been treated a payment towards the principal amount and not towards the interest. Mr. Justice B.D. Singh held that the plaintiff was entitled to apply the said amount towards interest at the rate of cent per annum. He also directed pendente lite interest to be calculated till the date of the decree of this court. Mr. Justice B.P. Jha, on the other hand held that the amount must be adjusted towards the principal. On the question of future interest, both the Hon ble Judges held that the plaintiff was entitled to the same at the rate of 6 per cent per annum. They also agreed with the direction of the trial court that the past and pendente lite interest should not exceed the principal amount, but differed on this question with respect to the future interest. Mr. Justice B.P. Jha held that the aggregate of the entire interest including the future, interest would not exceed the principal amount, but Mr. Justice B.D. Singh did not subject the future interest to such a condition. Since the Hon ble Judges differed on some of the questions, they directed that the case should be placed before the Hon ble the Chief Justice for placing it before a third Judge. Accordingly, the appeal was placed before me for further hearing.

6. The proviso to S.98(2) of the Civil P.C. states that if the Judges composing a Division Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point by one or more