RAMESHWARDAS v. LONKARAN — 1968 DIGILAW 154 (BOM)

JUDGMENT BHOLE J,-This is an appeal by the defendants from a decree passed by the Civil Judge, Senior Division, Akola. The plaintiffs have been held entitled to recover a sum of Ra. 11,787-13-0, the costs and the expenses of sale, out of the sale proceeds of the remaining mortgaged property, or, sufficient number of lands out of the remaining mortgaged property. It was further ordered that the residue, if any, should be paid to the defendants. 2. The plaintiff had filed a suit for a foreclosure of It mortgage dated 27-5.1945. He obtained a preliminary decree on 26-2-1954. The defendants were directed to pay a sum of Rs. 17,269 plus costs on or before 26th of August 1954. It was further ordered that, in default the mortgaged property was to be foreclosed to the plaintiff; the decretal sum plus costs were also ordered to carry interest at 9% per annum from the date of the preliminary decree to the date of realisation. It appears that the defendants were not Bat satisfied and, therefore, they preferred an appeal to the High Court which was dismissed on 23rd of August 1957. This court, however, modified the decree of the trial Court and substituted the preliminary decree for foreclosure by a preliminary decree for sale. The High court also fixed six months for redemption of the mortgaged property, failing which the plaintiff was entitled to so final decree for sale. The defendants did not redeem the mortgaged property within the time fixed by the High Court. The plaintiff, therefore, sought a final decree for sale of the mortgaged property for recovering the Sums due after taking accounts. 3. It, however, appears that there were negotiations between the parties in the final decree proceedings and the defendants were allowed to sell part of the mortgaged property. This was Survey Nos. 13 and 14 of Dhamangaon. These survey numbers were sold for a sum of Rs. 18,000 and the defendants deposited this sum in court on 14th of April 1958. Later on, Rs. 300 were also deposited by them towards the payment of costs. 4. It appears that the plaintiff later on sought correction of an arithmetical mistake in the judgment of the Court under section 152 of the Civil Procedure Code. The interest in the judgment for the period from 6th of August 1952 to 26th of February 1954 was calculated at Rs. 797. 4. It appears that the plaintiff later on sought correction of an arithmetical mistake in the judgment of the Court under section 152 of the Civil Procedure Code. The interest in the judgment for the period from 6th of August 1952 to 26th of February 1954 was calculated at Rs. 797. According to the plaintiff, the Court while passing the preliminary decree granted interest at the rate of 9% per annum throughout and, therefore, according to him, the interest on Rs 10,000 for that period was Rs. 1,350 and not Rs. 797. He therefore sought rectification of this mistake. 5. The defendants, however, opposed this application by the plaintiff contending that the effect of rectifying the preliminary decree would amount. to an amendment of the decree. The plaintiff, according to the defendants, could not be allowed at that stage of the proceedings to apply for amendment of the decree passed by the High Court. They also opposed it on the ground that the method of appropriation of the sums deposited by the defendants was not proper. According to them, the calculation did not take into consideration the rule of damdupat. It was, therefore, the contention of the defendants that the method of appropriation without taking into consideration the rule of damdupat was quite improper. 6. The learned Civil Judge after framing the necessary issues for consideration came to the conclusion that there was an arithmetical mistake in the calculation which crept in the judgment, but was of the view that in the method of appropriation a8 claimed by the plaintiff, the rule of damdupat did not operate. Accordingly, therefore, he passed a final decree for sale of the property for recovery of a sum of Its. 11,787-13-0 and costs. It is this decree that is challenged here by the defendants. 7. The defendants have for purposes of court-fees valued the claim in this appeal at RB. 5,000 only, although they apparently challenged the whole of the decree of the Bum of Rs. 11,787-13-0. The learned counsel for the defendants agreed to pay the necessary court- fees on Ra. 5,000 if this Court as orders. 8. The only short point that is argued here in this appeal is regarding the calculation of interest by the trial Court. 5,000 only, although they apparently challenged the whole of the decree of the Bum of Rs. 11,787-13-0. The learned counsel for the defendants agreed to pay the necessary court- fees on Ra. 5,000 if this Court as orders. 8. The only short point that is argued here in this appeal is regarding the calculation of interest by the trial Court. The learned counsel for the defendants contends here that the rule of damdupat is not taken into consideration at all while calculating the interest on the principal amount that was due to the plaintiff. The principal sum under the mortgage bond was Rs. 10,000. Interest, admittedly, at the time of passing the preliminary decree, was granted at the rate of 9% per annum The learned Civil Judge below has calculated interest at 9% per annum from 28-5-1945 the date of bond to 6.8.1952 the date of suit; this was Rs. 6,472. further interest of a sum of Rs 1,350 was also calculated at 9% per annum from the date of suit to 26-2-1954 the date of the preliminary decree. Thus the total Bum amounted to Hs. 17,822. The learned Judge then finds that the total dues after calculating interest till 26-8-54 six months after the preliminary decree originally passed does not violate the rule of damdupat. But the learned counsel for the defendants contends here that the calculations made by the Civil Judge taking into account a date six months after the preliminary decree passed by the trial Court is not correct. According to him, period of six months wi1l commence from the date of the decree passed by the High Court in appeal He, therefore, argues that the approach by the trial Court in fixing the date 26-8-1954 is not correct. 9. Now, it is true that in the matter of mortgages the effect of damdupat rule is exhausted when the matter passes into the domain of judgment; but then, in a suit on mortgage, the Court has to allow contractual interest till the date fixed for redemption. The point., therefore, that is agitated here is whether the date of redemption is the date six months after the passing of the preliminary decree by the trial Court or whether it is six months after the passing of the Higl1 Courts decree. The point., therefore, that is agitated here is whether the date of redemption is the date six months after the passing of the preliminary decree by the trial Court or whether it is six months after the passing of the Higl1 Courts decree. The learned counsel for the defendants contends here that it is not the date six months after the passing of the preliminary decree by the trial Court, but it is the date six months after the passing of the decree by the High Court. It appears to us that he is right in this contention. In Jagannath Prasad Singh Chowdhury v. Surajmal Jalal and others (1), the Privy Council was considering Order 34 of the Civil Procedure Code, as well as section 34 of the same Code, in a mortgage snit. The question of interest was considered by the Privy Council. Their Lordships have observed during the course of their opinion that till the period for redemption has expired, the matter remains in contract and the interest has to be paid at the rate and with the rests specified in the contract of mortgage. They further observed that after the period of redemption has expired, the matter passes from the domain of contract to that of judgment, and the right of his mortgagee should thenceforth depend, not on the contents of his bond, but on the directions in the decree. It is further observed that the period of six months allowed for redemption will not be counted from the date of the trial Courts decree if the decree or judgment of the Court of first instance was not affirmed. If the decree in appeal was varied, the six months, according to the Privy Council, should be counted from the date of the appellate decree. It is also logical and reasonable that the date of redemption should be not six months after the passing of the decree by the trial Court, but six months after the disposal of the suit by the appellate Court. The High Court in this case has also fixed the date accordingly. Therefore, the calculation by the trial Court is not legal and proper. 10. The rule of damdupat, therefore, should extend to the date which is six months after the High Courts decree. The High Court in this case has also fixed the date accordingly. Therefore, the calculation by the trial Court is not legal and proper. 10. The rule of damdupat, therefore, should extend to the date which is six months after the High Courts decree. We will, therefore, have to see whether the rule of damdupat is violated if interest is calculated for six months after the High Courts decree. The High Courts decree was passed on 23-8.19m. Six months after this decree would bring us to 23.2.]958. The interest at 9% per annum till 23-2-1958 will come to more than Rs. 16,822. This is, of course, more than Rs. 10,000, the principal amount of the mortgage. According to the rule of damdupat, the interest cannot be more than Rs. 10,000. Therefore, the total dues under this rule by the defendants on 23.2.1958 should at the most be Rs. 20,000. Rs. 18,000 were deposited on 14.4,-1958. Therefore the dues on 14.4-1958 with interest (from 28-2-1958 to 44-1958 on Rs. 20,000) at the rate of 9% per annum would come to Rs. 20,262 minus Rs. 18,000 (deposited) = Rs. 2,262. We have to calculate the dues till 3.8.1961, the date of the final decree. The interest, therefore, on Rs. 2,262 till 3.8.1961 would be Rs. 670. the total dues, therefore, would be Rs, 2,262 plus Rs. 670 = Hs. 2,932. 11. The learned Civil Judge has passed a decree of RB. 11,787-13-0 which includes costs hut the actual dues according to him are Rs. 1l,679-n-O. The actual dues taking into consideration the rule of damdupat as shown above are Rs. 2,932. The decretal aum was, therefore, liable to be reduced by Rs. 8,747 (Ra. 11,679 minus Ra. 2,932 = Ra. 8,747). But the defendants have valued their challenge in this appeal to a claim of a. 5,000. Their claim, therefore, is restricted only to a reduction of the decretal amount by Rs. 5,000. They are therefore entitled to a reduction of the decretal amount by only Rs. 5,000. The plaintiff thus must be held entitled to recover from the defendant,a Rs. 11,679 minus Rs. 5,000 = Rs. 6,679 only. 12. For the aforesaid reasons, therefore, we would modify the decree of the trial Court and do hereby order that the plaintiffs do recover a sum of Rs. 6,679 only. The defendants would be entitled to the costs on Rs. 11,679 minus Rs. 5,000 = Rs. 6,679 only. 12. For the aforesaid reasons, therefore, we would modify the decree of the trial Court and do hereby order that the plaintiffs do recover a sum of Rs. 6,679 only. The defendants would be entitled to the costs on Rs. 5,000 here in appeal. The rest of the decree of the trial Court is confirmed. It is further ordered that the decree should be drawn only after the defendants pay the requisite court-fee on the claim of Rs. 5,000. The defendants to pay the deficit court-fees within a period of three weeks. Decree modified.