AGNES ISABELLA CAMPBELL Vs. CAUDIKESAVULA NAYUDU

JUDGEMENT

(1.) The plaintiffs sued to redeem the property mentioned in the plaint, which was mortgaged on the 17 July, 1874, to secure the sum of Rs. 8,450 with interest at 12 p.c. per annum. The mortgagee was in possession of the property. A decree was passed on the 2nd of March, 1922 declaring that the plaintiffs are entitled to redeem the mortgage and directing accounts to be taken of the amount due to the defendants for principal and interest, of the rents and profits of the mortgaged property, of the sums paid for rates, taxes and other public charges, of the sums paid by the defendants for the due management of the property and of the sums paid for necessary repairs. The matter was referred to the Official Referee who has submitted a report. Objections have been taken by the plaintiffs; but the defendants have filed no objections. The objections pressed before me are that, as there was no provision for payment of interest after July 1879, the Official Referee was wrong in giving post diem interest, at the bond rate, and the defendants are only entitled to interest by way of damages, at 6 per cent, for six years, and that in" stead of applying the income received by the mortgagee, first in reduction of public charge?, repairs and then of the interest payable, the Official Referee has taken an account of each year, adding up the total charges and the interest etc., deducting from the amount so arrived at, the income for the year, leaving a balance against the mortgagors and has allowed upon that balance 12 per cent, per annum. This is in effect giving compound interest.

(2.) The first objection relates to post diem interest and this turns upon the terms of the mortgage. The deed of mortgage recites that the mortgagors grant and convey the property specified in the mortgage to the mortgagee, "to have and to hold the said premises unto and to the use of the mortgagee," his heirs and assigns subject to the following proviso: provided always that if the said John William Coxe, B.W. Coxe, J.H. Coxe, T.P. Coxe and Agnes Isabella Coxe, their hairs, executors administrators, representatives or assigns shall pay upto the said Canckoo Iyaloo Naidu his executors, administrators, representatives or assigns the sum of Rs. 8,450 on or before the 1 day of July, 1879, together with interest for the same in the meantime after the rate of 12 per cent, per annum. Without any deduction, then the said Canckoo Iyaloo Naidu, his heirs or assigns, will, upon the request and at the cost of the said John William Coxe...their, or any of their heirs, executors, administrators, representatives or assigns re-convey the hereditaments, hereby granted to the use of the said John William Coxe...their, or any of their heirs and assigns or as they, or he shall direct; but if default shall be made in payment of the said sum of Rs. 8,450, or the interest thereon in the manner aforesaid, or any pact thereof respectively, on the 1 day of July 1879, it shall be lawful for the said Canckoo Iyaloo Naidu, his heirs, executors, administrators, representatives, or assigns, without any further consent, on the part of the said John William Coxe...their, or any or either of their heirs, or assigns, to sell the hereditaments, hereby granted together or in parcels and either by public auction or private contract with power upon any such sale to make any stipulations as to title or evidence of title, or otherwise, which the said Canckoo Iyaloo Naidu, his heirs, executors, or assigns shall deem proper and also with fall power to buy in, or rescind, any contract for sale of the said premises and to resell the same, without being responsible for any lass occasioned thereby.

(3.) The deed goes on to provide that the mortgagee, his executors administrators representatives, or assigns: shall hold the monies to arise from any such sale upon trust in the first place there- out or to reimburse himself, or themselves, or pay and discharge all the costs and expenses attending, incurred in or about such sale or otherwise in respect of the premises and in the next place to apply such monies in or towards satisfaction of all and singular the monies for the time being, owing on the security of these presents and to pay the surplus (if any) of she said premises unto the said John William Coxe, E.W. Coxe, J.H. Coxe, T.P. Coxe and Agnes Isabella Coxe, their or any or either of their executors, administrators, representatives, or assigns.