The main legal point established in the judgment is the application of S.34 of CPC and Order 34 Rule 11 in a mortgage suit, and the court's authority to modify the preliminary decree and allow repayment by instalments.

A. C. Bhowmik, For Appellant. S. Deb, Sr. Advocate and S. N. Bannerjee. For Respondent.

Judgement

B. B. DEB, J. :- This appeal is directed against the judgment and decree dated 27-7-1993 passed by the learned Asst. District Judge,West Tripura, Agartala in Title Suit No.16 of 1991.

2. We have heard Mr. A.C. Bhowmik, learned counsel for the appellant. Also heard Mr. S. Deb, learned Sr. Counsel assisted by Mr. S.N. Bannerjee, learned counsel for the respondent Bank.

3. The aforesaid title suit was filed by the State Bank of India, Agartala Branch against the appellant. The appellant borrowed a sum of Rs.1,45,000 on 15-7-1981 for purchassing a TATA Chasis for transport business. But the respondent-Bank having granted loan asked the appellant to enter into an agreement creating equitable mortgage of immovable property and accordingly the appellant entered into an agreement creating equitable mortgage over his landed property. The loan money having been disbursed, the appellant purchased a Lorry bearing No.TRL-2881 and the said Lorry was also remained hypothecated against the loan. Since the appellant in default in repaying the loan amount with interest at agreed rate, the respondent -Bank having served notice filed the suit. The learned trial Court having recorded the evidence decreed the suit for an amount of Rs.2,18,902.81 p. and also decreed for a payment of interest @ Rs. 12.5%p.a. over the decretal amount till realisation of the same. It was also directed by the learned trial Court that in the event of failure of the appellant to repay the decreetal amount within a period of six months, the hypothecated Lorry bearing No. 2881 and the mortgaged properly as shown in schedule-B of the plaint be sold for satisfaction of the decretal amount.

4. During argument both the parties confined their stand as to what would be the rate of interest during the pendency of the suit and during the period intervening between passing of decree and realisation of the decretal amount. The learned counsel for the appellant referring S.34 of CPC submits that it is upto the discretion of the Court to determine the percentage of interest to be imposed upon the borrower (appellant herein) and as such the learned trial Court having failed to exercise the discretion imposed 12.5% interest in a mechanical manner.

5. Sub-sec.(1) of S. 34 of CPC prescribes that the rate of interest to be paid on the principal sum adjudged from the date of filing the suit to the date of decree is to be imposed by the trial Court as it deems reasonable and it is also further prescribed that the rate of interest should not exceed 6% p.a. as the Court deems reasonable on the principal sum from the date of decree to the date of payment, or to such earlier date as the Court thinks fit. But by Amendment Act of 1976 CPC, the following proviso has been incorporated under S. 34 CPC :-

"Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction the rate of such further interest may exceed six per cent per, annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transaction."

6. The learned counsel for the respondent-Bank having referred to Order 34 Rule 11 submits that in a case for foreclosure based on a transaction of mortgage of immovable property the provision of S. 34 CPC has no manner of application so far calculation of interest is concerned, but the provision of Order 34 Rule 11 would govern the field relating to rate of interest to be added to the decretal amount so adjudged by the learned trial Court. For conveniences sake, the provision of Order 34 Rule 11 is reproduced below :-

"R. 11 Payment of interest :- In any decree passed in a suit for foreclosure, sale or redemption, where interest is legally recoverable, the Court may order payment of interest to the mortgagee as follows, namely :-

(a) int

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