S. SARASWATHI AMMAL Vs. SETH GOBINDRAN LILARAM

JUDGEMENT

(1.) This is an appeal by one of the Judgment-debtors in C.S. No. 220 of 1951 against the judgment of Sadasivam, J., affirming the order of the Master, which included in the sale proclamation the interest that accrued on the mortgage amount subsequent to the date of the final decree. In this case a preliminary mortgage decree was passed against the appellant and three others on 2/9/1952. Paragraph 2 of the decree stated:

(2.) Paragraph 6 of the decree provided for payment into Court of this sum of Rs.69,895.001-0, declared due under clause 2 supra and the taxed costs, with interest at 6% per annum from the date of taxation to the date of payment. The judgment-debtors did not pay the mortgage amount as specified in the preliminary decree. A final decree was therefore, passed on 9/1/1953, stating that "defendants 1 and 2 made default in the payment of the amounts mentioned in the preliminary..." and directing that "the mortgaged property be sold in accordance with the preliminary decree made herein, dtd. 2/9/1952, and more particularly described in the Schedule hereto." Both the preliminary and final decrees are in Form Nos. 57 and 60 respectively under the old Original Side Rules.

(3.) It is well-known that the provisions of Order 34, Civil Procedure Code, have not been completely adopted by the Original Side Rules which, under Order 29, has provided for a particular procedure to be adopted in the matter of obtaining a decree on mortage and executing the same. Order 29, rule 9 of the O.S. rules provides for the passing of decrees in the form set out earlier. Rule 12 says, "If the sale is confirmed, the Court may pass an order in Form No. 61 or Nos. 62". Under Forms 57 and 60, to which we have just now made reference, the decree amount to be specified in the decree is (1) the amount of principal, (2) subsequent interest till the date of suit, and (3) further interest till the date fixed for redemption. Unlike rule 11 of order 34, Civil Procedure Code, there is no provision is Form No. 57 for including interest that accrued on the mortgage amount subsequent to the date fixed for redemption, in the final decree that is to be passed. There is no provision in the form of the final decree given in Form No. 60 for such subsequent interest being included. But the rules do contemplate the decree-holder being enabled to realise interest on his mortage amount from the date fixed for redemption till the date of realisation on the sale under the mortgage decree at a later stage. Form No. 61 provides in paragraph 3 thereof that, out of the sale proceeds, the amount due towards principal, interest till the date of suit and further interest till the date of redemption and costs should be paid first and that, after discharging the amount specified in the decree, interest subsequent to the date fixed for redemption till the date of confirmation of the sale can be paid to the decree-holder out of the surplus sale proceeds. The rule is the same even under the present rules. It is clear from the rules set out above that the final decree in a mortgage suit can only be made for the realisation the amount due on the mortgage as on the date of the suit together with subsequent interest till the date fixed for redemption and for no other amount. A decree-holder to whom payment is not made in terms of preliminary decree will be entitled to apply for a final decree for sale of the property, in the form set out above. But the amount in the final decree can only comprise the amounts specified in the preliminary decree. The interest that accrues subsequent to the date fixed for redemption, to which a decree-holder will justly be entitled, can only be provided for under the rules by the order confirming the sale.