JUDGMENT Lahiri, J. - This appeal is by the plaintiff in a suit for sale based upon an English mortgage. The material facts of the case which are undisputed are as follows: 2. On 5th September 1935, the defendant borrowed a sum of Rs. 50,000 by executing an English mortgage in favour of the plaintiff and agreeing to pay interest at the rate of 9 per cent, per annum simple, if paid regularly from month to month, and compound, in case of default of any three instalments, with quarterly rests. On 15th September 1939, the plaintiff instituted title suit No. 106 of 1939 (mortgage) in the Court of the Subordinate Judge, 2nd Court, 24-Parganas, for the sale of the mortgaged premises for the realisation of a sum of Rs. 57,648-14-3 after deducting a sum of Rs. 8711-2-9 which had been paid before the suit. On 19th January 1940, a petition of compromise was filed in the suit and in terms of the said petition a final decree was passed on 23rd January 1940, for a total sum of Rs. 61,422-8-9 with post decretal interest at the rate of 9 per cent. per annum to be reduced to 6 per cent. per annum in the event of punctual payment. By the compromise decree the defendant was allowed to pay up the decretal dues in certain instalments beginning from 15th February 1940, and ending on 15th November 1942. On 19th January 1943, the decree-holder applied for execution and on 17th July 1943, the judgment-debtor applied for reliefs under S. 36, Bengal Money-lenders Act. 3. The learned Subordinate Judge came to the conclusion that the compromise decree included as interest a sum of Rs. 229-3-9 which was not payable under the Bengal Money-lenders Act and in that view of the matter re-opened the decree and made a new decree under S. 34, Bengal Money-lenders Act, for Rs. 55,893-5-0 payable in monthly instalments of Rs. 625. In arriving at the new figure the learned Subordinate Judge deducted from the defendant's liability a sum of Rs. 5300 which had been admittedly paid by him after the passing of the compromise decree. This new decree is dated 17th May 1944. The plaintiff decree-holder has filed this appeal against the new decree and the only point urged by Mr. In arriving at the new figure the learned Subordinate Judge deducted from the defendant's liability a sum of Rs. 5300 which had been admittedly paid by him after the passing of the compromise decree. This new decree is dated 17th May 1944. The plaintiff decree-holder has filed this appeal against the new decree and the only point urged by Mr. Sen in support of the appeal is that in arriving at the new figure the learned Subordinate Judge has not taken into account the interest that accrued between the date of the old decree and the date of the new decree. The appellant has claimed a sum of Rs. 17,322-3-9 as interest which accrued between the date of the old decree and the date of the new decree, at the maximum statutory rate allowed by the Bengal Money-lenders Act, i.e., 8 per cent. per annum. 4. There can be no doubt that as soon as a decree is reopened, the suit is revived and it remains pending till the new decree is passed. The new decree is a preliminary decree and prima facie the plaintiff is entitled to interest up to the date of the new decree under the provisions of O. 34 R. 2 read with Rr. 4 and 11, Civil P.C. As the plaintiff has not claimed any interest from the date of the preliminary decree up to the date fixed for payment, we need not consider the question whether he is entitled to get it under S. 31(a), Bengal Money-lenders Act. 5. The only question, therefore, is whether the decree-holder is entitled to any interest up to the date of the new preliminary decree and if so, at what rate. 6. There can be no doubt that the decree-holder was awarded interest during the pendency of the suit up to the date of the old decree. There is no reason why he should not be awarded interest for the period that intervened between the date of that decree and the date of the new decree. Mr. Gupta has argued that under O. 34 R. 11 as interpreted by the Federal Court in the case of AIR 1940 20 (Federal Court) , the Court has power to refuse interest during the pendency of the suit. Mr. Gupta has argued that under O. 34 R. 11 as interpreted by the Federal Court in the case of AIR 1940 20 (Federal Court) , the Court has power to refuse interest during the pendency of the suit. Even if the Court has that power it cannot be exercised in the circumstances of this case in view of the fact that interest pendente lite was allowed under the compromise decree passed on 23rd January 1940, and we cannot split up the pendency of the suit into two periods and allow interest for one period and disallow it for the other. We cannot, therefore, accept the argument of Mr. Gupta that we should totally disallow interest for the period that elapsed between the old decree and the new decree. 7. The next question is what is the rate at which interest should be allowed. Mr. Sen on behalf of the plaintiff has argued upon the plain words of O. 34 R. 11(a)(i) that if the Court allows interest pendente lite it has no power to vary the contractual rate if any, and that the Court has a discretion with regard to the rate of interest only where no such contractual rate exists. It has, however, been held by the Federal Court in the case of AIR 1940 20 (Federal Court) , referred to above, that so far as interest pendente lite and subsequent interest are concerned, it is no longer absolutely obligatory on the Courts to decree interest at the contractual rate up to the date of redemption in all circumstances. and we are bound by this decision. In the case of Nanilal Roy and Others Vs. Raja Gopal Lal Roy and Others, AIR 1948 Cal 154 , Mitter and Ahmed JJ., interpreted the aforesaid judgment of the Federal Court to mean that pendente lite interest in a mortgage suit can be awarded at a lesser rate than that provided for in the contract, and this is also the view taken by Nasim Ali and Blank JJ. in appeal from Original Decree No. 186 of 1941 (Kumar Pramatha Nath Roy v. Ramani Kanta Roy), decided on 13th March 1944. in appeal from Original Decree No. 186 of 1941 (Kumar Pramatha Nath Roy v. Ramani Kanta Roy), decided on 13th March 1944. Upon these authorities, we are bound to hold that we have the power to vary the contractual rate in respect of interest pendente lite and if we have the power, we propose to exercise it in favour of the borrower for the following reasons. 8. As a result of the proceeding under S. 36, Bengal Money-lenders Act, the pecuniary liability of the borrower has been reduced by only Rs. 229 as found by the Subordinate Judge and not disputed before us. If we now saddle the borrower with pendente lite interest at the maximum statutory rate, the borrower will have to pay an additional amount of Rs. 17,322-3-9, which is the amount claimed by the appellant. It may be that the borrower must pay some price for the respite he gains in the shape of instalments but the price must not be out of proportion to the benefit obtained. We agree with Mr. Gupta that we must not take away by one hand what has been given by the other. 9. Mr. Sen has argued for the appellant that the appellant has been deprived of the enjoyment of the money which might have been more profitably utilised during the interval but we think that this result is the outcome of legislative interference with contractual rights. 10. Taking all these things into account, we think that the justice of the case will be sufficiently met if we allow pendente lite interest at the rate of 4 per cent per annum. Calculated at that rate the respondent will be liable to pay Rs. 8661 in addition to the amount decreed by the Court below. The respondent has produced before as certain chalans showing that he has deposited a sum of Rs. 37,500 in Court since the passing of the new decree. This sum will have to be deducted from the outstanding liability of the defendant and a new self-contained decree should be drawn up in this Court. The present liability of the borrower is thus found to be Rs. 55893-5-0 minus Rs. 37500 plus Rs. 8661, i.e., Rs. 27054-5-0. 11. 37,500 in Court since the passing of the new decree. This sum will have to be deducted from the outstanding liability of the defendant and a new self-contained decree should be drawn up in this Court. The present liability of the borrower is thus found to be Rs. 55893-5-0 minus Rs. 37500 plus Rs. 8661, i.e., Rs. 27054-5-0. 11. With regard to instalments we have to notice that the direction given by the Court below to pay the decretal dues in monthly instalments is illegal, as it is against the provisions of S. 34(1)(a)(i), Bengal Money-lenders Act which directs payment in annual instalments. The defendant will, therefore, pay the aforesaid amount of Rs. 27,054-5-0 in four annual instalments beginning from May 1950, the first three instalments being at the rate of Rs. 7500 and the balance in the last instalment. 12. The appeal is accordingly allowed in part. The decree made by the Court below is varied in the manner indicated above. The appellant will get half the costs of this Court, except the hearing fee which is assessed at three gold mohurs. The order as to costs made by the Court below stands. 13. The costs awarded to the plaintiff will be made a part of the decree and will be paid by the respondent along with the last instalment. G.N. Das, J. 14. I agree.