Judgement Appeal from a decree of the High Court (Jan. 4, 1894) affirming a decree of the Subordinate Judge of Backergunge (Aug. 31, 1891). The consent decree, the effect of which was in dispute in this appeal, was dated August 13, 1888. It was in favour of the above-named appellant on a mortgage against the respondents. It scheduled ninety items of mortgaged property; decreed Rs.52,902 for principal and interest to be realized by sale of the mortgaged properties; and provided that if the sum of Rs.35,000 should be paid as to Rs.700 thereof before the end of Assin, 1295 (October 15, 1888), and as to the balance of Rs.34,300 by August 14, 1899, then the balance of the said decree was to be remitted and the decree was to be satisfied by such payments. As to the Rs.700, the respondents were to have grace till August 14, paying interest at 5 per cent, per mensem for any time that such amount should be overdue. It also provided that if the whole sum of Rs.35,000, or even if any part thereof should on August 14, 1889, be still unpaid, then the whole amount of the said decree (less the amount paid), with interest and costs, should become and be due, and should be recoverable by sale of the said mortgaged property, and also of the other properties of the respondents. The seventh paragraph of the solehnama on which the consent decree was based, according to an amended translation made in the High Court, ran as follows " When it becomes necessary for the defendants to transfer or let out under a pottah, by receiving salami or bonus, the mortgaged property or certain ketas of land appertaining thereto for the purpose of paying off the Rs.35,000 stated in paragraph 4, they, the defendants, shall, before the 30 Assar, 1296, fix the person to whom they wish to sell or let out in pottah the different properties at different times, and file a furd or paper shewing the actual sthit or assets of the said properties to the plaintiff. The plaintiff should appraise the mofussil sthit with the expense supplied by the defendants within thirty days from the aforesaid date, and allow the proper price thereof or the proper salami thereof to be credited in favour of the defendants against their debt, and then duly execute a mukti-patra or sanmati-patra with the expense supplied by the defendants. Unless a written consent is given by the plaintiff, or a mukti-patra is executed by him, the mortgaged property or any part thereof should not be transferred or made over to any person under a pottah granting any right thereby by the defendants, and any act, if done by the defendants, other than the above shall not be granted," The respondents being in default, the appellant petitioned for an absolute order of sale. The respondents contended that he was not entitled to treat them as in default, since it was due to his own failure to appraise and fix the price for certain of the mortgaged properties, in consequence of which certain projected sales fell through. The Subordinate Judge held that the appellant was entitled as prayed. The High Court, on the other hand, held that the fair construction of the solehnama was that the appellant mortgagee "was bound to act with due diligence in satisfying himself as to the accounts of such portions of the estate as the mortgagor should propose to sell, and to signify his assent or dissent, the latter to be made, if made, on reasonable grounds; and to signify his assent, if made, in such mode and time as should facilitate negotiations by the mortgagor with intending purchasers." They were of opinion that a case had been made before the Lower Court needing inquiry as to whether this had been done by the mortgagee, and that without such inquiry the sale ought not to have been ordered, and they therefore directed that this case should be remanded to the Lower Court with directions to make such inquiry. They were also of opinion that if on such inquiry it should appear that the mortgagee did make it practically impossible for the mortgagor to carry out the intended arrangement, the mortgagees claim should be limited to the reduced amount agreed upon in the said solehnama, and, further, that " Unreasonable refusal or neglect by the mortgagee, and a reasonable ground for belief that property could have been sold in time for enough to meet the reduced claim but for such conduct, would be enough to entitle the mortgagor to have the mortgagee held to his agreement to take the lesser sum." They therefore stopped the sales which were being held under the said decree, and remanded the case to the Lower Court for an inquiry and report as to whether the mortgagee had obstructed the respondents in their efforts to sell the said property by not acting with due diligence in inquiring and deciding whether the offers for purchase of the said property submitted to him by the respondents should be accepted. On remand the Subordinate Judge held that the decree-holder did render it practically impossible for the respondents " to sell some of the mortgaged properties " before August 15, 1889, for enough to meet the reduced claim, and that therefore this appellant, " according to the terms of the solehnama as interpreted by the High Court," was not entitled to get more than Rs.34,800 on account of his mortgage decree, and was not entitled to any interest on such amount. The High Court affirmed this judgment. Branson, for the appellant, contended that the High Court was wrong in law in remanding the case in the first instance to the Subordinate Judge, and that no case had been made out justifying the remand. Further, they had placed a wrong construction on the seventh clause of the consent decree. They held that it was expressly agreed between the parties that the judgment debtors should be at liberty, without any objection on the part of the decree-holder, to sell or lease out the mortgaged properties, or any part of them ; that the decree-holder should appraise the value within a specified time; that it was not incumbent on the respondents to arrange for such sales as would at one time pay off the whole of the lesser sum by August 14, 1889. It was contended that they ought to have held that the true construction of that clause did not impose any obligation on the appellant to inquire and appraise from time to time and as often as the respondents found a purchaser or lessee for any one of the ninety properties, however small. The appellant was not bound to move in the matter of such valuation more than once, or until he was informed by the respondents that arrangements had been made for the satisfaction of his whole claim, and sufficient sales or leases had been effected with that view. If the appellant had consented to the sales proposed, there was no evidence that the, respondents could have provided the balance in due time so as to satisfy the decree for the limited amount. C. W. Arathoon, for the respondents, was not heard. The judgment of their Lordships was delivered by LORD DAVEY. This is an appeal by a money-lender in Bengal, who held a mortgage from Ram Churn Saha Poddar and Madan Mohun Saha Poddar, brothers, for a sum which it is unnecessary to mention. Suffice it to say, that in the early part of the year 1888 the appellant instituted a suit in the Court of the Subordinate Judge of Backergunge against the respondents to recover the sum of Rs.49,855.14.The mortgage covered ninety different lots of land, some of them, apparently, from the description in the schedule, being of small value, and others of larger value, but apparently not lying contiguous to each other. After the suit was commenced a compromise was come to, and that compromise is to be found in the consent decree. The effect of that decree was this that the defendants consented to judgment for the entire amount asked by the plaint, but subject to this proviso—that if, on a day which is the same as August 14, 1889, the defendants should pay to the plaintiff the sum of Rs.35,000, the decree should be considered as satisfied, and the balance of the money should be considered as remitted. Out of the sum of Rs.35,000 the defendants were to pay to the plaintiff the sum of Rs.700 before October 15, 1888, and the remaining Rs.34,300 before August 14, 1889. Out of the sum of Rs.35,000 the defendants were to pay to the plaintiff the sum of Rs.700 before October 15, 1888, and the remaining Rs.34,300 before August 14, 1889. The decree provided that if they failed to pay the sum of Rs.700 within the month of Assin—that is,October—next, than the aforesaid sum of Rs.700 should bear interest at the rate of 5 per cent, per month from the month of Kartick next. It then contained a clause, which is No. 7 in the decree, and according to the translation given in the record is as follows— the learned judges of the High Court had it retranslated, but in substance, and for any material purpose, it does not appear to their Lordships that the version given in the judgment of the High Court differs from that in the record "If for the payment of the aforesaid sum of Rs.35,000 it should be necessary for the defendants to transfer the mortgaged properties, or any plots or portions of them, or grant pottahs on receipt of salami"—that is, a premium or bonus for the lease—" then the defendants shall, on settling who are to receive (the pro perties), give the plaintiff the sthit papers in relation to whatever properties they may from time to time determine to sell or lease, before the 30th Assar 1296 "—that is, July 13, 1889. "Within thirty days from that day the plaintiff shall, at the defendants expense, make appraisement of the sthit in the mofussil, and after crediting the proper price, or the proper salami, against the defendants debt, shall at the defendants expense duly execute a deed of release or deed of consent. The defendants shall not be able to alienate the mortgaged properties, or any portion of them, or confer any right therein by pottah to any one without a written deed of release or consent from the plaintiff, and if they do any act contrary to this such act shall be of no effect." The meaning of that clause appears to their Lordships to be reasonably plain. No doubt the respondents, who appear to be a widow lady and her sons, would find a difficulty in raising the money for the purpose of paying the mortgage debt to the decree-holder except by sale, as opportunity offered, of the mortgaged properties themselves. The clause provides means for doing so. No doubt the respondents, who appear to be a widow lady and her sons, would find a difficulty in raising the money for the purpose of paying the mortgage debt to the decree-holder except by sale, as opportunity offered, of the mortgaged properties themselves. The clause provides means for doing so. But of course the plaintiff would quite rightly secure himself against any improvident alienation, or any alienation, of the property comprised in his mortgage at an inadequate price; and for that purpose the arrangement is that whenever from time to time the defendants, the mortgagors, should determine to sell or release, they should send to the plaintiff the particulars, in order to enable him to judge of the propriety of the sale, or the adequacy of the price of any sale, or the bonus if a lease. Then there is an absolute obligation upon him. It is not left to his option. There is an absolute obligation upon him within thirty dayr, from the day he receives the papers and particulars to make an appraisement, and, if the price is approved and credited to him against the debt, he is then to execute a deed of release, or deed of consent. On the face of this clause there is not the slightest pretence for saying that the decree-holder was at liberty to postpone the appraisement of the properties which the respondents proposed to sell from time to time until sales were proposed of a sufficient amount to pay the whole of the debt. On the contrary, it is expressly contemplated that the respondents may from " time to time " determine to sell or release; and from the nature of the property, consisting, as has been said, of ninety small lots, it is apparent that they would be more likely to sell in separate parcels than in bulk, so as to raise the whole amount at once. Nor is there any ground for saying, as Mr. Branson suggested, that the plaintiff, the decree-holder, is not bound to execute a deed of release, or a deed of consent, until the whole debt is paid off. The deed of release, or deed of consent, which is referred to in this clause is obviously a deed of release, or a deed of consent to the mortgagor selling, in favour of the purchaser. The deed of release, or deed of consent, which is referred to in this clause is obviously a deed of release, or a deed of consent to the mortgagor selling, in favour of the purchaser. The High Courts observation is, their Lordships think, entitled to great weight, that if the construction which the decree-holder, the appellant, put upon this clause, that he was not bound to do anything until the whole of his money was forthcoming, was a right construction, they might just as well have had no clause at all; because, of course, if the whole of his money was forthcoming, and they were ready to pay him off the whole of his money, it was perfectly immaterial to him what prices they obtained. What took place on this decree was this. The Rs. 700 were paid in the time stipulated about that there is no controversy; leaving, therefore, Rs.34,300 to be paid before August 14, 1889. The present respondents did arrange for a sale of various lots, and, without reading the whole of the correspondence, it is sufficient to take the first letter, which is dated the 7th of Bysack, 1296, equivalent to April 19, 1889, as a specimen. This is from the respondent Bindubasini Dasi, the widow. She writes this to the present appellant " I have already written two letters to you, but owing to my misfortune you have not, up to this time, given any reply to them. I have been trying to pay up your money by the sale of properties. The matter has not yet been settled with the purchasers, but the sale of the properties Nos. 55, 82, 68 of the mortgage bond at thirty times the profit"—that is probably thirty years purchase— " has been arranged for with Gobind Chunder Saha and others, and the property No. 79 at thirty times the profit with Judhistir Saha, and the earnest moneys have been taken from both. 55, 82, 68 of the mortgage bond at thirty times the profit"—that is probably thirty years purchase— " has been arranged for with Gobind Chunder Saha and others, and the property No. 79 at thirty times the profit with Judhistir Saha, and the earnest moneys have been taken from both. I send the sthit papers of those properties to you per book post "; and then she points out, which is an obvious observation, that "people fear many things before they purchase, and if one transaction is completed with one person, others will be encouraged to enter into (similar) transactions." Or the sentence might have been put in a negative form " If it is found that these transactions will not go off, and you will not give your consent to my selling these properties as I have agreed to do, then other persons will be shy of entering into contracts for the remainder of the property." Then she asks him in accordance with this contract to " send a man as soon as you can to make an appraisement of .... those four properties." What was the answer to that? His answer was dated the 29th of Bysack, which would be equivalent to some day in April or May, 1889, about ten days afterwards " It will be very troublesome to make an appraisement if you arrange for the sale of properties in this way. You have in this way procured only Rs.3138-8 annas; but you have not said what is to be done about the remaining money. Procure the whole of the money, then an appraisement shall be made of all the properties together, and a deed of release will be executed." That was a plain breach of the contract which the appellant had entered into. He had, as has been already pointed out, entered into a contract that, thirty days after receiving the particulars of sales made from time to time, he would send a man to appraise; but in this letter he refuses to send a man to make the appraisement until the whole of the money is procured, and an appraisement can be made of all the properties together, when a deed of release will be executed. That, therefore, was a complete breach of his contract, and the consequence was that those sales could not be carried out. That, therefore, was a complete breach of his contract, and the consequence was that those sales could not be carried out. Then there are subsequent letters to the same effect, and he gives the same answer, that she cannot get a release " until the whole amount is procured according to the terms of the settlement "; and he says it wastes time trying to sell piecemeal. Ultimately she sends a registered letter on the 29th of Assar, 1296—that is, July 12, 1889. She had previously sent her servants to personally expostulate with the appellant, and she now writes him a letter begging him to send a man to appraise the properties which she had undertaken to sell. He replies, " Nothing can be done unless the whole of the money is procured, and it is of no use to worry me repeatedly. Still, as you say you have secured purchasers for some of the properties mortgaged to me, and of some other properties, for Rs.23,000, I sent my officer Jagat Chunder Chuckerbutty to make an appraisement. Have the consideration money of those among the mortgaged properties for the sale of which you have arranged deposited by the purchasers with some trustworthy pleaders, and Mokhtar of Madaripore, and after getting the appraisement made within three days you will pay up the remaining money within the time fixed by the solehnama." In other words, he says " Out of grace and favour to you I will send my officer to make an appraisement, but I make the condition that the consideration money of the mortgaged properties," for the sale of which the respondent had arranged, " shall be first deposited by the purchasers, and also that the appraisement shall be made within three days, and you will thereupon pay up the remaining money." The man apparently was sent. There is some difference in the evidence as to what took place, but the learned Subordinate Judge has expressed his opinion as to the result of the evidence, and the High Court concur in the view which he takes of the evidence upon that point. There is some difference in the evidence as to what took place, but the learned Subordinate Judge has expressed his opinion as to the result of the evidence, and the High Court concur in the view which he takes of the evidence upon that point. It amounts to this that the man did go, but refused to appraise, and the reason why he refused to appraise was because in accordance, no doubt, with the instructions he had received he required the whole amount of the purchase-money to be deposited by the purchasers before he would make the appraisement, which was, of course, a perfectly unreasonable condition, and one which he had no right to make ; and he also required the appraisement to be made in three days, which the learned Subordinate Judge says made it practically impossible to carry it out. Under the circumstances it is not surprising that the respond ents were not able to find the money on the stipulated day; and thereupon the present appellant presented a petition for realization of his entire decree by sale of the mortgaged properties. That was resisted by a statement put in on behalf of the respondents, shewing in substance, but not in the detail in which their Lordships have stated them, the facts which have been referred to. The learned Subordinate Judge in the first instance gave the appellant execution for the whole amount of his decree on the ground that there was nothing in the compromise decree, the solehnama, which requires the appellant to give his consent to the sale of any of the property. There was an appeal, and the learned judges in the Court of Appeal expressed their opinion of the construction of the solehnama, and remanded it back to the learned judge to inquire whether in substance the appellant had placed unreasonable obstructions in the way of the respondents realizing the mortgage money by sale of the mortgaged properties. The learned Subordinate Judge took evidence on the point, and gave his judgment on August 31, 1892. The learned Subordinate Judge took evidence on the point, and gave his judgment on August 31, 1892. After very carefully examining the evidence, he says " Considering all these facts and circumstances of the case, I find that the decree-holder did render it practically impossible for the judgment debtors to sell some of the mortgaged properties within Srabun, 1296, for enough to meet the reduced claim, and, therefore, according to the terms of the solehnama, as interpreted by the High Court, he is not entitled to get more than Rs.34,300 for his mortgage decree. It should be mentioned that there was evidence which satisfied the Subordinate Judge, and the High Court also, that if the appellant had done that which he had contracted to do, and made an appraisement, and given a deed of release of the properties which were proposed to be sold by the mortgagors within the time stipulated for, the respondents had made arrangements through which, by the sale of other property, including their jewellery, they would have been in a position to pay Rs.35,000 before the date when it ought to have been paid according to the solehnama. There was an appeal from this judgment of the Subordinate Judge. The Appeal Court again went very fully into the case, and they came to the conclusion that the Subordinate Judge was right in the view which he had taken of the facts of the case, and that the appellant had not performed the contract which he had undertaken to perform, and had rendered it impossible for the respondent to find the money within the time fixed. They thereupon confirmed the decree of the Subordinate Judge. In other words, the substance of their decree is this that as the appellant in breach of his contract had prevented the respondents from paying the sum of Rs.35,000, as they could have done, and would otherwise have done within the time stipulated for by the solehnama, he must be put into the same position as if that sum had been tendered to him within that time, and he had refused the tender. Their Lordships think that that is the principle of the decree, and that in the circumstances of the case it is a sound principle. It follows that the appellant cannot get any interest on his Rs.34,300. Their Lordships think that that is the principle of the decree, and that in the circumstances of the case it is a sound principle. It follows that the appellant cannot get any interest on his Rs.34,300. The learned Subordinate Judge has taken that view, and the High Court also have taken the same view on that question as was taken by the Subordinate Judge. In the result their Lordships will humbly advise His Majesty that the decree of the High Court should be affirmed, and the appeal dismissed; and the appellant will pay the costs of it.