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1945 Supreme(Nagpur) 52
HIGH COURT OF NAGPUR
Bose, Sen
BAPURAO AND ANOTHER – Appellant
Versus
ANANT KASHINATH AND OTHERS – Respondent
Miscellaneous Civil Case No. 184 of 1941
Decided on : 31-07-1945
A V Khare, M N Jog, T B Pendharkar, Y V Jakatdar, Advocates
The main legal point established in the judgment is the application of the rule of damdupat in limiting the recoverable interest on a mortgage amount, and the Court's power to award interest at the contract rate despite the rule's limit.
Headnote:
Amendment - Mortgage - Order XXXIV, Rule 11 - Section 34 - Hindu Law of Debts - Damdupat - Transfer of Property Act - Civil Procedure Code - Interest Calculation
Fact of the Case:
The respondents applied for amendment of the preliminary decree for foreclosure, arguing that the decree did not align with the judgment. The dispute arose from the calculation of interest on a mortgage amount and the application of the rule of damdupat.
Finding of the Court:
The Court found that the decree was not in accordance with the judgment and allowed the application for amendment, substituting the sum awarded to the plaintiffs and deleting certain details from the decree.
Issues: The main issue was whether a civil Court has the power to award interest on the amount due under the mortgage from the date of the suit till the date of the decree at the contract rate, despite the limit imposed by the rule of damdupat.
Ratio Decidendi: The Court analyzed the application of the rule of damdupat, the provisions of the Transfer of Property Act, and Order XXXIV, Rule 11 of the Civil Procedure Code. It concluded that the rule of damdupat limits the recoverable interest and determined that the decree should be amended.
Final Decision: The Court allowed the application for amendment, substituted the sum awarded to the plaintiffs, and extended the time for payment of the decretal amount with a condition for simple interest at 4 per cent per annum.
Sen, J—This is an application by respondentsdefendants 1 and 2 for amendment of the preliminary decree for foreclosure dated the 18th November 1940. The date fixed for payment of the decretal amount was the 18th May 1941. The amount payable under the decree is Rs. 1,44,433-6-0 (Rs. 15,875 principal, Rs. 1,25,023-8-0 interest on the said principal and Rs. 1,517-14-0 and Rs. 2,017 for costs of the suit and the appeal). The applicants urge that the decree which has been drawn up is not in accordance with the judgment and that it should have been for Rs. 35,284-14-0 (Rs. 15,875 principal, Rs. 15,875 interestinterest being restricted to this amount by reason of the rule of damdupat and Rs. 3,534-14-0 on account of costs).
2. The difference is due to the fact that in the decree interest at Re. 1-2-0 per cent per mensem with annual rests has been calculated on Rs. 31,750 from the 14th August 1929, the date of suit, to the 18th May 1941, the date fixed for payment.
3. In order to understand the point involved in this application it is necessary to set out briefly a few relevant facts. Lalji Shankar executed a mortgage for Rs. 15,875 on the 21st March 1922 in favour of Vishwanath Ramji, father of plaintiff no. 1, and Lalji Vithoba, plaintiff no. 2 and agreed to pay interest at Rs. 1-2-0 per cent per mensem with annual rests. The date fixed for payment was the 21st March 1927. On default, in payment of the amount on the due date the mortgagor was to pay interest at Rs. 2 per cent per mensem with annual rests from the date of the bond till satisfaction. As the amount due under the mortgage was not paid the plaintiffs filed civil suit no. 15 of 1933 in the Court of the Third Additional District Judge, Akola, on the 14th August 1929 to enforce the mortgage. The relief clause is in these terms:
11 (a) The defendants be directed to pay to the plaintiffs Rs. 31,750 made up of the amount of Rs. 15,875 and Rs. 15,875 only on account of interest thereon as the same amounts to more than damdupat as mentioned in the annexed schedule.....
(f) Interest at the above rate from the date of the suit till that of satisfaction be allowed.
4. The trial Court dismissed the suit on the 19th December 1935. The mortgagees filed First Appeal no. 33 of 1936 against that decree. They restricted the claim in appeal to Rs. 31,750 as in the lower Court and paid court-fee on that sum. In the memorandum of appeal there was no specific claim for interest pendente lite. The appellants were bound to pay court fee on the amount of interest which had accrued due from the date of suit till the filing of the appeal if they wanted interest pendente lite at the contract rate.
5. On the 8th August 1939 the Divisional Bench held that the mortgage was enforceable and referred the question of law arising out of the appeal to a Full Bench for decision. The decision of the Full Bench is reported in Kashinath v. Bapurao,1940 AIR(Nag) 573. For the purpose of this application it is not necessary to state the question which was formulated or the decision of the Full Bench thereon.
6. After the decision of the Full Bench the appeal came up for hearing before the Divisional Bench. Only two points were urged, viz., (i) the extent of the share of Janrao and Dyandeo, defendants 6 and 7 in certain fields which should be, exempted from the operation of the mortgage and (ii) whether Bapurao, applicant no. 1, who was born on the 9th December 1926, after the execution of the mortgage dated the 21st March 1922, was entitled to challenge the mortgage executed by his father. These points were decided by the judgment Reported in I.L.R. [1940] Nag. 707 Ed. dated, the 18th November 1940. The concluding portion of the judgment is in these terms:
The result is that the appeal succeeds except as regards the two-third share in the fields we have specified above belonging to the 6th and 7th defendants. The decree of the lower Court will therefore be set aside and a foreclosure decree will now be passed in t
