HARI KISHAN BHAGAT Vs. RAJA KAMALESHUR PRASHAD SINGH

JUDGEMENT

(1.) This appeal is directed against the decree in a mortgage suit which has now lasted for a period of fifteen years. The plaintiff and defendant both challenge the validity of the decree in respect of the mode of calculation for interest.

(2.) On behalf of the plaintiff, it is argued that the previous order of the Court, made on the 28th August, 1906, has not been properly carried out, inasmuch as upon a true construction of that order, interest at the rate stipulated in the bond ought to have been allowed upon the sum calculated to be due at the date of the institution of the suit and not merely upon the principal sum as determined by the Court to be payable out of the property in the hand of the defendant. In our opinion, there is no foundation for this contention. It may be conceded that the order of the 28th August 1906 is ambiguous. But as pointed out by Sir Arthur Strachey, C.J., in Bakar Sajjad v. Udit Narain Singh 21 A. 361 at p. 370 by Sir John Edge, C.J. in Amolak Ram v. Lachmi Narain 19 A. 174 : A.W.N. (1897) 9 and by Sir Louis Tershaw, C.J. in Maharaja of Bharatpur v. Kanno Dei A.W.N. (1898) 164 when the terms of a judicial order are ambiguous, it should, whenever possible, be construed in such a way as to make it in accordance with law, for the Court will not presume that a judicial order has been erroneously made and in contravention of the statutory provisions on the subject. It has not been disputed that if the contention of the appellant were to prevail, the inference would follow that the District Judge had, on the 28th August 1906, made an order directly contrary to the provisions of the Transfer of Property Act. We are of opinion, therefore, that the order as to mode of calculation of interest made by the District Judge on the 2nd July 1939, on the basis of the previous order of the 28th August 1906, is correct, and there is no substance in this appeal.

(3.) In support of the cross-objection, it has been argued by the respondent that in the calculation of interest, credit ought to have been allowed in respect of the sum of Rs. 1,404 13 brought into Court by him on the 11th January 1905. It appears that on that date, the Sub- Judge found that in his view of the terms of the contract between the parties, the sum just mentioned was payable by the defendant. The defendant immediately carried out the order of the Court and deposited the sum as directed. It has ultimately been found on appeal by the District Judge that on that date, a larger sum was due to the plaintiff. On this footing, it has been contended for the plaintiff in answer to the cross-objections that as the sum brought into Court was, in fact, only in part payment of-the sum then due, there was no valid tender, and interest continued to run upon the whole sum, notwithstanding this payment. In our opinion, the contention of the respondent is well founded and must prevail. It was pointed out by this Court in the case of Digambar Das v. Harendra Narain 11 C.L.J. 226 at 234 : 5 Ind. Cas. 165 : 14 C.W.N. 617 distinguishing the earlier decision in Bechu Singh v. Bichharam Sahu 1 Ind. Cas. 67 : 10 C.L.J. 91 at p. 98 that the doctrine that a mortgagee is not bound to accept any sum in part satisfaction of his decree and is entitled to an order absolute unless the entire amount specified payable is brought into Court for payment to him, does not apply where, as here, there is a controversy as to what is due and the payment is made in accordance with the determination of the Court at the time as to the amount payable by the mortgagor to the mortgagee. This very point arose for decision in the case of Greenwood v. Sutcliffe (1892) 1 Ch. 1 : 61 L.J. Ch. 59 : L.T. 797 : 40 W.R. 214 where the mortgagor paid into Court what was determined at the time to be due and it was held that this was equivalent to a good tender, although it was ultimately adjudged that a larger sum was due from the mortgagor to the mortgagee. The essence of the matter is that the mortgagor has made an unconditional payment, and such payment ought to have been accepted by the mortgagee in part satisfaction of his claim, as acceptance of a payment so made would not in any way interfere with his right to obtain an adjudication from the Court that as a matter of fact or law a larger sum was at the time due to him.