DAWOODBHAI KASSAMJI MATIWALLA Vs. SHAIKHALI ALIBHOY

JUDGEMENT

(1.) TWO substantial questions have been raised in this appeal. One is as to the right of a mortgagee to the interest provided for in the mortgage deed from the date of the suit filed by him to enforce the mortgage till the period fixed for redemption, and the other is the right to costs as between attorney and client of the mortgage suit. The learned Judge below came to the conclusion that the plaintiffs, who are the mortgagees and who filed the suit to enforce their two mortgages, should not get interest on the mortgage money at the contract rate from the date of the suit, but only at the rate of 6 per cent, and he also held that the plaintiffs were entitled to the costs of the suit as between party and party and not as between attorney and client, and the appeal of the plaintiffs is confined to these two points decided against them by the learned Judge below.

(2.) WITH regard to the question of interest, the position in law was very different prior to 1929 when Order 34 was amended and Rule 11 was for the first lime inserted. Prior to 1929 we had Order 34, Rule 2, which provided that in a suit for foreclosure, (and the provision also applies to a suit for sale or redemption), if the plaintiff succeeds, the Court shall pass a decree ordering that an account be taken of what would be due to the plaintiff for principal and interest on the mortgage, and for his costs of the suit awarded to him on the day next hereinafter referred to, and it was held that under this provision the Court could not deprive the mortgagee of the interest agreed upon till the date fixed for redemption. This decision was based on the principle that up to the date of the preliminary mortgage decree and also up to the further period of grace which the Court gave to the mortgagor for redeeming the mortgage, interest was in the domain of contract and not in the domain of judgment and the Court had no discretion to vary the rate of interest and award to the mortgagee interest less than what the mortgagor had agreed to pay. But in 1929 Order 34, Rule 2, was amended and Order 34, Rule 11, was inserted. Order 34, Rule 11, dealt with the question of payment of interest and it provided :

(3.) STRONG reliance was placed by Mr. Banaji on a decision of the Privy Council in -- 'jagannath Prasad v. Surajmal', AIR 1927 PC 1 (A ). It must be borne in mind that that decision turned on the interpretation of Order 34 before it was amended in 1929. What their Lordship of the Privy Council laid down was that on at preliminary decree for foreclosure or sale under Order 34, Rules 2, 4, Civil P. C. , a mortgagee were entitled to interest, at the rate and with the rests stipulated in the mortgage down to the date fixed for redemption by the decree, and in the judgment it is pointed out