DAYAWATI Vs. INDERJIT

JUDGEMENT

(1.) In this appeal by special leave against the judgment and decree of the Punjab High Court, dated October 15, 1959 the only question is whether, in the facts to be stated presently, the High Court was right in reducing interest in a preliminary mortgage decree, dated August 12, 1953 by applying Ss. 5 and 6 of the Punjab Relief of Indebtedness Act which were extended to Delhi on June 8, 1956.

(2.) On January 17, 1946 Hazarilal (predecessor of respondents 1to 5) and one Jagat Narain (respondent 6) executed a simple mortgage-deed for Rs. 50,000 with interest at 9 per cent per annum or in default of payment of interest for 3 months at Re. 1 per cent per month for the period of default. As the mortgagors made default in payment of interest and also did not pay anything out of the mortgaged amount a suit was filed for enforcement of the mortgage by sale of properties. The claim was for Rs. 76,692-9-8, by calculating interest at 9 per cent per annum for the first 3 months and at 12 per cent per annum till institution of the suit and allowing credit for Rs. 14,000 as repayment. The defendants admitted the mortgage and the consideration but pleaded that the rate of interest was both penal and excessive. This plea was not accepted and a preliminary decree was passed for the full claim on August 12, 1953. Hazarilal alone appealed on January 5, 1954 (R. F. A. No. 1-D of 1954) and asked for reduction of interest by Rs. 7,900 and of the rate of future interest to 9 per cent per annum. Court-fee was paid on Rs. 7,900. During the pendency of this appeal the decree was made final on April 3, 1954.

(3.) Before the appeal was disposed of Inderjit and Satya Narain, sons of Hazarilal, filed a suit for a declaration that the properties were ancestral and belonged to a joint family. They claimed that the properties could not be sold and asked for a temporary injunction which was first granted and later vacated. Against the order vacating the stay they filed an appeal (F. A. O. 68-D of 1957) and obtained temporary stay from the High Court. The mortgagees also filed in that appeal a petition (C. M. 1318-D of 1957) for vacation of the stay order. On February 10, 1958 a conditional say order was passed by a learned single Judge of the High Court but we need not trouble ourselves with it.