HADIBANDHU SAHU Vs. KALU RAM

JUDGEMENT

(1.) This is an application on behalf of the judgment-debtor who is aggrieved by the order passed by the learned Subordinate Judge of Cuttack dated 11 January 1940, by which he refused to vary the preliminary decree which allowed interest pendente lite.

(2.) It appears that originally on a handnote the petitioner took a loan of Rs. 10,000 from the opposite party and some time thereafter he executed a mortgage bond in favour of the respondent for a sum of Rs. 13,000. The mortgagee instituted a suit to recover the amount due. A preliminary decree was passed before the operation of the Orissa Money-lenders Act. A final decree was also apparently passed without applying the provisions of that Act. Thereafter, the judgment-debtor made an application to the learned Subordinate Judge purporting to be under Section 11(2), Orissa Money-lenders Act, to exercise all or any of the powers specified in Sub-section (1). The learned Subordinate Judge then gave a direction that the original loan should be treated as the sum of Rs. 10,000 so that the amount due at the date of the suit was fixed at Rs. 20,000 less any sum received by the mortgagee on account of interest, but he did not at all interfere with the future interest pendente lite. The interest pendente lite bad been fixed at 12 annas per cent, per mensem and after the period of grace at 6 per cent, per annum.

(3.) It is now contended that the learned Subordinate Judge had no power to fix the interest pendente lite at 12 annas per cent, but should have completely wiped out the direction in the preliminary decree by which interest pendente lite had been awarded at this rate. Reliance was placed upon a decision of this Court in Debi Prasad V/s. Kusum KumariA.I.R. 1930 Pat. 442. But that decision dealt with the construction of Section 6 of Regulation 3 of 1872. In the present case, we have to construe the provisions of the Orissa Money-lenders Act. The provisions on this point are similar to the provisions to be found in the Bihar Money-lenders Act. Their Lordships of the Federal Court have construed these provisions to mean that a full discretion is given to the Court which passes the decree to decide whether interest pendente lite should be awarded or not. In this case the Court, if the argument of the petitioner is correct, did not exercise the discretion in his favour because he did not interfere with the direction which is to be found in the preliminary decree. I am, therefore, of the opinion that there is no ground for any grievance which the petitioner can be said to have suffered in this revision. He allowed a preliminary decree to be passed and thereafter the learned Subordinate Judge, who had the provisions of the Money-lenders Act before him, did not think it right to exercise the discretion in favour of the petitioner. It is impossible to interfere in this revision.