PALANI GOUNDAN Vs. MUTHUSWAMI GOUNDAN ALIAS AVANASHI GOUNDAN

JUDGEMENT

(1.) The petitioner was the third defendant in a mortgage suit and he applied under Secs.8 and 19 of Madras Act IV of 1938 to scale down the decree. The learned Subordinate Judge has given a decree for the principal amount of the debt with interest at 6 per cent, from 1 October, 1937 and also-for Rs. 1,855-3-0 for costs and has provided that this amount awarded for costs shall carry interest at six per cent, from the date of the decree which is 12 March, 1932. Petitioner seeks to revise this order by applying to the decree for costs the scalring down provisions of the Act so as to cancel the, interest as on 1 October, 1937. There is nothing in the Act which excludes from the scaling down operation interest on costs. The principal sections dealing with costs are Secs.11 and 19. Section 11 states that where a debt includes any sum decreed as costs by any Court or sums lawfully expended by a mortgagee or other person in order to preserve the property mortgaged, such sum or sums shall be recoverable in addition to the sum recoverable under the provisions of Secs.8 and 9. We doubt whether this section was intended to safeguard not only costs but interest thereon, for the section couples costs with sums recoverable as having been lawfully expended by a mortgagee. Such sums would normally be added to the principal amount of the mortgage and would bear interest at the contract rate. If it had been the intention to exclude interest on such sums due to the mortgagee from the scaling down provisions, surely there would have been an express indication of the fact. We are constrained to the view that there was no intention to safeguard interest on sums payable to a mortgagee and if there was no such intention, similarly there can be no intention to exclude from the scaling down provisions interest on any sum decreed as costs.

(2.) The other main provision relating to costs is found in the proviso to Section 19 which is to the effect that payments in respect of a decree shall first be applied in payment of all costs as originally decreed to the creditor. It is contended that the phrase costs as originally decreed means costs without any scaling down. It is equally likely that the phrase was intended to mean the principal amount of costs and to exclude interest thereon. At any rate, there is nothing in Section 19 which is inconsistent with the view that the appropriation therein provided for was intended to be only in respect of the principal sum for costs or that this provision had any other object than to give effect to the provisions of Section 11. We are of opinion that when there is a decree for costs which forms part of a decree being scaled down under Section 19, the provisions of the decree relating to interest on costs should be amended by the process laid down in Secs.8 and 9. In the present case, the result will be that the amount decreed for costs will carry interest at six per cent, per annum with effect from 1 October, 1937.

(3.) The revision petition is allowed with costs and the decretal order of the lower Court will be amended in the light of this judgment.