GEDDAM SUBBA RAO AND ORS. Vs. BALANTRAPU SATYANARAYANAMURTHY

JUDGEMENT

(1.) THE Judgment -debtors in a mortgage decree in O. S. No. 70 of 1939, Sub Court, Amalapuram, are the appellants. The appeal is against the order dismissing the judgment -debtor's application to determine the amounts due by them under the decree and to order restitution of such amount as might have been overpaid by them to the decree -holder in the course of the execution of the decree.

(2.) A preliminary mortgage decree was passed by the High Court in App. No. 205 of 1942 on 13 -7 -1944. The decree directed the judgment -debtors to pay on or before 13 -10 -1944 or any later date upto which time for payment may be extended by the Court a sum of Rs. 9892 -12 -9 with further interest on Rs. 5852 -3 -0 at 6 per cent per annum from the date of decree till the date of payment. The other clauses of the decree are in conformity with form No. 5 of Appendix D, Schedule I, Civil P. C., (the form usually employed for a preliminary mortgage decree for sale). Clauses 2, 3, 4 and 5 of the decree in this case are, in fact, copy of the corresponding clauses provided in form No. 5. In pursuance of the preliminary decree a final decree was passed on 13 -3 -1945 which provided that as the payment directed by the preliminary decree inferred to had not been made the mortgaged property would be sold.

(3.) IT is contended on behalf of the appellant that where no provision is made in the decree as to subsequent interest under the provisions of Section 34 Clause (2), Civil P. C., the decree being silent with respect to payment of such further interest, it must be held that the Court must be deemed to have refused such interest and there should therefore be no execution taken out for such additional interest. The power to award subsequent interest in mortgage decrees has now been conferred under Act 29 of 1929 and a provision is incorporated in Order 34, Rule 11, Civil P. C., which empowers the Court to award interest in mortgage decrees. Rule 11 of Order 34, Civil P. C. says;