N. H. BHATT, J. ( 1 ) THIS is an appeal preferred by the original defendants of the Special Civil Suit No. 70 of 1974 decreed against them by the learned Civil Judge (S. D.) Rajkot who by his judgment and decree directed these appellants-defendants to deposit with the court on or before 30-6-75 Rs. 2 76 309. 97 along with interest on this amount at the rate of 12 % per annum from the date of the suit till the date of the decree and interest at the rate of 6% per annum on the decretal amount from 31-12-1975 (the date of the judgment) till 31 or any prior date of the deposit if any. The learned Judge further ordered that if the defendants failed to deposit money as ordered the mortgaged property would be sold and the proceeds would be applied towards the payment of the debt as said above. The learned Judge also stated that the plaintiffs were entitled to interest at 6% per annum till the date of realisation of the money subsequent to the above dates. The defendants were also saddled with the costs of the suit of the plaintiff. ( 2 ) THE plaintiffs had filed the afore-said suit to recover the aforesaid amount by the sale of the mortgaged property. The mortgage deed is to be found at Exhibit 24 and it is dated 17-6-1969 securing loan of Rs. 1 50 0 As per the terms of the agreement rent was to be paid at the rate of 12% per annum every three months because the mortgagors were entitled to receive rent from the tenants occupying various parcels of this mortgage property and therefore it was provided that if the defendants failed to make such payments of rent every three months the said rent due was liable to be added to the principal amount and interest at the rate of 12% per annum on that amount was to be calculated onwards. Thus on the date of the suit the total amount of Rs. 2 76 309. 97 was claimed to be due along with the initial principal amount of Rs. 1 50 0 The mortgage was executed by deceased Ramniklal Sunderji who had died after that transaction and so the suit was filed against his heirs and legal representatives. Out of 12 defendants the defendants Nos. 2 76 309. 97 was claimed to be due along with the initial principal amount of Rs. 1 50 0 The mortgage was executed by deceased Ramniklal Sunderji who had died after that transaction and so the suit was filed against his heirs and legal representatives. Out of 12 defendants the defendants Nos. 9 10 11 and 12 were stated to be minors being aged 17 16 12 and 12 respectively. The summons for the minor defendants had come to be served on the natural guardian that is their mother the defendant No. 1. She had engaged a lawyer specifically and expressly for herself and the minors also and she had filed the written statement Exhibit 16 also for herself and on behalf of her children referred to above. The written statement Exhibit 16 is dated 21-7-75 whereas the suit had come to be filed on 1-8-74. Curiously enough there was no specific application for getting the mother appointed as the guardian; ad-litem for those minors. At least some of them i. e. the defendants Nos. 9 and 10 would have become major very shortly after the institution of the suit as they were aged 17 and 16 on the day the suit had come to be filed. The suit went on. In the written statement Exhibit 16 filed by all the defendants including the mother acting for and on behalf of the above-mentioned minor defendants the mortgage transaction was specifically admitted in paragraph 4 nor was it disputed that the plaintiffs were entitled to claim interest at the rate of 1% per month making the monthly liability by way of interest at Rs. 1 500 All that they contended was that their liability on the date of the suit could not exceed Rs. 2 38 500 after giving credit for payment of the first months interest after the execution of the mortgage deed. So the only question was the matter of calculation of interest and whether interest on the amount of interest due could be claimed or not. ( 3 ) THE learned trial judge raised only two issues because of the abovesaid state of pleadings. The issues were- (I) To what interest plaintiffs are entitled to? (II) What order and decree should be passed ?the learned judge ultimately upheld the plaintiffs contentions and decreed the suit. ( 3 ) THE learned trial judge raised only two issues because of the abovesaid state of pleadings. The issues were- (I) To what interest plaintiffs are entitled to? (II) What order and decree should be passed ?the learned judge ultimately upheld the plaintiffs contentions and decreed the suit. We however quote certain findings of his in order to highlight some of the controversies that were raised before us:only contest between them was in relation to interest which the plaintiffs can legally recover and even though the defendants had filed Application under Section 30 of the Bombay Money-lenders Act the plaintiffs have rushed to the court and so no costs of the suit should be awarded. This argument could have been available if the defendants had deposited the amount of the debt in the court but the learned advocate Shri N. B. Dave has submitted that no amount is deposited in court under intimation to the plaintiffs and on condition that the plaintiffs may withdraw the same. There is no evidence that the plaintiffs deposited the debt in the court under intimation to the plaintiffs. The leaerned advocate Mr. N. B. Dave stated that he learnt from other sources that the defendants had deposited Rs. 25 0 but that is only a small fraction of the debt due to the plaintiffs. Moreover no intimation is given to the plaintiffs that they can withdraw the amount deposited even as per the written statement interest of Rs. 90 0 is in arrears. Defendants have neither deposited principal nor interest. So there is no justifiable cause why the plaintiffs should be deprived of their costs. The learned advocate Shri C. H. Bhimani stated that the interests of minors were concerned. The defendants Nos. 9 to 12 are minors but at the same time it is to be noted that in violation of the terms of the contract the mortgaged premises are leased by the defendants and the rent is taken by them and the interest is not paid to the plaintiffs. In these circumstances I have allowed costs to the plaintiffs. ( 4 ) MR. Gandhi the learned counsel appearing for appellants raised before us many contentions the foremost of which was that the decree was a nullity against the defendants Nos. 9 10 11 and 12 because no guardian adlitem was appointed for them. We propose to take up this contention first. ( 4 ) MR. Gandhi the learned counsel appearing for appellants raised before us many contentions the foremost of which was that the decree was a nullity against the defendants Nos. 9 10 11 and 12 because no guardian adlitem was appointed for them. We propose to take up this contention first. As a matter of fact it is to be accepted that no application for appointment of a guardian for those minors-defendants was made and there was no such appointment order made. The question however is whether because of this want of formality of appointing the mother the natural guardian as a guardian adlitem the decree stands vitiated or not. We find that this is in the facts and circumstances of the case a sheer formal or technical lacuna which does not vitiate the solemn judgment and the decree. In the case of Rangammal v. Minor Appasami and Others AIR 1973 Madras 1 2 the learned judge of that court relying upon some earlier judgments clearly held that if the minors interests had been adequately safeguarded in the suit by the natural guardian of the minor by representing him and taking part in the proceedings in the court the mere fact that formal order was not passed will not vitiate the decree because there has been a substantial representation of the minor in the suit. We are in full agreement with the view expressed by the Madras High Court in this connection. Similar is the view of the Division Bench of the Allahabad High Court (Luknow Bench) in the case of Brij Kishore Lal v. Satnarain Lal and Others AIR 1954 Allahabad 599. The learned Judges clearly lay down that if some formalities for the appointment of a guardian have not been observed but if the guardian has agreed to act as guardian and has done something in the suit to show that he accepted his appointment as a guardian the mere fact that some formalities were over-looked or not observed or there was no formal order of appointment would not vitiate the proceedings or would not affect the result of the suit provided there has been no prejudice to the minor. In the case on hand there was a registered document deed executed by the predecessor-in-title of these minors. The mother had engaged an Advocate not only for herself but specifically for her minor children also. In the case on hand there was a registered document deed executed by the predecessor-in-title of these minors. The mother had engaged an Advocate not only for herself but specifically for her minor children also. She had filed the written statement also even on their behalf. The mortgage being a registered one and executed by the deceaseds predecessor-ill-title there was not anything that could be challenged by the minors. So we find that no prejudice whatsoever could have been conceivably caused to the minors at any rate two of whom had become major by the time the judgment came to be delivered by the learned Judge on 31 We say no prejudice has been caused because even before us there was no controversy about the mortgage liability and non-payment of any interest except the first months interest of Rs. 1500/ -. We therefore (which payment is acknowledged) do not see any strength in this argument. Mr. Gandhi however had placed reliance on the judgment of the Supreme Court in the case of Ram Chandra Arya v. Man Singh and Another AIR 1968 SC 954 . It was a case against a lunatic without appointment of a guardian and the court head that the decree was a nullity and sale held in execution of that decree was void ab initio. In that case the sole judgment-debtor Ram Lal was sued and proceeded against. There-after there came to be filed a suit No. 552 of 1946 and the suit was contested on the ground that Ram Lal was a lunatic and the earlier suit (in which the decree had come to be passed) namely suit No. 354 of 1939 had been instituted against Ramlal without appointment of a guardian ad-litem. In the case on hand the suit is not only against minors. The minors were represented by their mother who is their natural guardian. From the very nature of things the mother who was one of the heirs of deceased Ramniklal could not conceivably have any conflicting interest with those of four minors. There was no scope for any other contention to be advanced. It is perhaps because of this that despite the knowledge that four minors were there this point was not urged before the learned trial judge. It is only the be-latedly developed ingenuity that has brought about this point before us. There was no scope for any other contention to be advanced. It is perhaps because of this that despite the knowledge that four minors were there this point was not urged before the learned trial judge. It is only the be-latedly developed ingenuity that has brought about this point before us. ( 5 ) THE second contention that was vigorously put forward by Mr. Gandhi before us was that this being a suit for sale for the purpose of realising the mortgage dues a preliminary decree under Order 34 Rule 4 was mandatorily required to be passed and that having been not done the forthwith passed final decree was contrary to the provisions of law and therefore void. In the facts and circumstances of the case we find that the decree that has been passed by the learned judge though specifically stated to be a final decree and not a preliminary decree for all practical purposes is a preliminary decree The first reason that prompts us to say so is that the learned trial judge has arrived at the amount which will be there at the foot of the accounts. This is a case where no accounts were required to be taken. The property was throughout in possession of the mortgagors heirs who enjoyed the usufruct all throughout. Barring payment of interest of Rs. 1500/- for the first month after the mortgage nothing was admittedly paid. So there is no question of taking any accounts. The form 5 of Appendix D appended to the Civil Procedure Code is the form for the preliminary decree for sale. Clauses (i) (ii) (iii) and (iv) deal with the question of acounts. No question of accounting whatsoever had arisen in this case. So that part was redundant and therefore appointment of a Commissioner also was absolutely uncalled for. Paragraph 4 of said Form 5 deals with the courts order and direction that the defendant do pay into the court on or before a specified day or any later date upto which time for payment may be extended by the court together with costs awarded to the plaintiff and that on such payment the property could be put to auction sale. The operative part of the order of the learned judge in his judgment complies with this requirement. The operative part of the order of the learned judge in his judgment complies with this requirement. The words of para 11 of the judgment read as follows:the defendants shall deposit in the court on or before 31st June 1976 (i. e. after six months from the date of the decree) Rs. 2 76 309. 97 along with interest on this amount at the rate of 12% per annum from the date of the suit to the date of the decree. . . . . This means that six months time is given. If for some reasons the defendants so required they could apply for extension of time. The learned judge has not prohibited them from doing so. We on our part fail to see any justification on the part of these defendants who had not paid interest except for the initial month to ask for such an extension but even if any conceivable ground could be found out by these debtors there was nothing to prevent them from doing so. As a matter of fact right from the time the judgment had come to be pronounced on 31-12-1975 till we deliver this judgment today i. e. on 27-4-1984 i. e. about a little less than nine years period the defendants have been enjoying the usufruct all throughout without caring to pay anything to the judgment creditors. Still however if they can evolve and find out some rational grounds for seeking time for making the payment hereafter they can certainly do so under Section 148 of the Civil Procedure Code or in view of what we have interpreted of the final order in the judgment. We reiterate that there is no prohibition against seeking time and so the decree in question for all practical purposes is a preliminary decree. Mr. Gandhi however urged that had the preliminary decree been passed they could have urged the learned judge of the executing court or the learned judge himself at the time of passing of the final decree that not the whole property but a part of it should be put to sale on the ground that sale of that part would be sufficient to bring the consideration which would meet the liabilities of the mortgage debts. It is open to the appellants-defendants to request the learned judge to so apply and if they succeed in this prolonged litigation to show that there is a remote justification for such a prayer on their part the learned judge would certainly consider the same. ( 6 ) WHETHER a decree could be treated as a preliminary decree inspite of what is stated in the body of the judgment is answered by the Division Bench of this court in the case of Dhami Navnitbhai v. M/s. Bhagvanlal Chhaganlal 19 GLR 420 In paragraph 12 the ratio of the judgment in that connection could be found as follows: The suit indisputably in this case was one for sale of mortgaged property for recovering the amount payable under the mortgage and also for passing personal decree if the sale proceeds are insufficient to satisfy the amount due to the mortgagee. The suit ended in a consent decree. Controversy is-whether it is a preliminary decree or final decree or partly preliminary and partly final decree. Section 2 of the Code defines decree to mean the formal expression of an adjudication which so far as regards the court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Explanation annexed to the definition provides that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It further provides that decree may be partly preliminary and partly final. The suit ended in a consent decree on 19 This is a decree in a suit brought by a mortgagee for sale of mortgaged property. By the decree the mortgagors were required to pay Rs. 18 0 within six months with running interest at 6% per annum further providing that if the mortgagors fail to pay amount within the time prescribed by the court the mortgagee would be entitled first to bring the mortgaged property to court auction and recover the amount from the sale proceeds and if the sale proceeds are found to be insufficient to satisfy the decretal debt the balance may be recovered from person and other property of the mortgagors. To the extent that mortgagors were given time to pay Rs. To the extent that mortgagors were given time to pay Rs. 18 0 within six months this decree is indisputably a preliminary decree because if the mortgagors failed to pay the amount within such extended time as the court may grant the plaintiff mortgagee will have to take further steps namely to seek the final decree for bringing the property to court sale. To this extent the decree is a preliminary decree. (Emphasis supplied.) mr. Gandhi however in this connection placed reliance on the judgment of the Bombay High Court in the case of Ramji Bapuji Patel v. Pandharinath Ravaji AIR 1918 Bombay 1 To us it appears that the whole reference to that judgment is wide the mark. The point that was there before the Court was whether a decree nisi in suit for redemption operates as an absolute decree or operates as an absolute order and if it operated as former a subsequent suit for redemption would not lie. That was exactly the question before the Full Bench of the Bombay High Court. The Full Bench held that a mortgagor who has brought a suit for redemption and obtained a decree nisi which neither the mortgagor nor the mortgagee has applied to be made absolute can after the execution of that decree is time barred being a fresh suit for redemption. We do not find any relevance of this citation with the point on hand. Mr. Gandhi had also invited our attention to the judgment of this Court in the case of Patel Narharilal Kuberdas v. Firm Bogilal Amratlal AIR 1963 Gujarat 253 the case of Suresh chandra v. United Bank of India AIR 1961 Calcutta 534 and also the judgment of the Nagpur High Court reported at AIR 1954 Nagpur 135. The Calcutta judgment lays down only this much that a final decree is to be passed after hearing both the sides and not ex-parte for the reasons stated there-in. The judgment of the Gujarat High Court mentions that in a suit to recover certain amount by sale of the property charged in a suit the preliminary decree is necessary. We have stated that for all practical purposes the decree in question is a preliminary decree though the learned Judge has called it a final decree. We have already explained above how it is a preliminary decree. ( 7 ) IT was then alleged by Mr. We have stated that for all practical purposes the decree in question is a preliminary decree though the learned Judge has called it a final decree. We have already explained above how it is a preliminary decree. ( 7 ) IT was then alleged by Mr. Gandhi that compound interest could not be given. When there is a specific contract reached for good reasons we see no reason why the compound interest be not ordered to be given. The original mortgagee had advanced a substantial amount of Rs. 1 50 0 as back as in the year 1969. The mortgagor continued to remain in possession of the property and was entitled to recover rent from various tenants. It is because of this that he had agreed that every month he would go on paying Rs. 1 500 by way of interest and it is specifically stipulated between the parties that if the mortgagor failed to pay the interest as was agreed upon it will be treated as the amount added to the prinipal. The learned trial judge has assigned good reasons while rejecting this contention and without burdening this judgment with the same observations we say that we endorse the reasoning in that connection. ( 8 ) MR. Gandhi then insisted that the plaintiff was required to step into the witness box to prove the amounts. When the basic facts were admitted when the basic contract was admitted and when there was no contention about any payment having been made except the initial payment of interest for the first month after mortgage it was a matter of sheer calculation and we find that no evidence on that score was necessary. Still to satisfy ourselves we had got that account written and we find that the amount claimed tallies even to a paisa. It was however urged that interest should have been calculated according to the Gregorian calendar and not according to the Hindu calendar. The contract is specifically providing for paying the interest according to the Hindu calendar. Unlike the provision in the Bombay Rent Act where. the rent is to be calculated according to the Gregorian calendar irrespective of the contrart to the contrary there is no such provision in any law under which we can say that there is a legal prohibition against calculating the interest on the basis of the Hindu calendar. Unlike the provision in the Bombay Rent Act where. the rent is to be calculated according to the Gregorian calendar irrespective of the contrart to the contrary there is no such provision in any law under which we can say that there is a legal prohibition against calculating the interest on the basis of the Hindu calendar. ( 9 ) IT was then alleged that taxes were wrongly claimed by the plaintiffs. We find that taxes are not at all claimed and so there is no relevance of this argument. ( 10 ) THE last was the contention about the payment of Rs. 25 0 made into the court. The learned judge has examined this question in paragraph 10 of his judgment. The learned judge stated that there was no evidence that the plaintiffs (it should be defendants) deposited the debt in the court under intimation to the plaintiffs. Mr. Gandhi invited our attention to Exhibits 18 and 46 on the record of the case but they do not specifically speak of any such deposits but during the course of the hearing the plaintiffs advocate Mr. N. B. Dave had stated that he had learnt from other sources that the defendants had deposited Rs. 25 0 Mr. Mehta appearing for the respondents agreed that this amount was deposited at the fag-end of the trial before the court and he therefore volunteered that Rs. 25 0 be deducted from the total amount of Rs. 2 76 309. 97 This amount of Rs. 25 0 is to be deducted towards the arrears of interest. Mr. Gandhi states that this amount should be deducted towards the principal amount but when interest is being added to the principal amount every three months the amount of interest also becomes the amount of principal and it makes no difference. ( 11 ) THE result is that barring the above-mentioned minor amendment in the final order the appeal fails and to that extent stands dismissed. The appellants shall pay costs of the plaintiffs. We cannot accept the argument of Mr. Gandhi that parties should be left to bear their own costs particularly when all these years right from 1969 till this day they have enjoyed the amount lent by the plaintiffs and also income from the property. Appeal dismissed. .