JAGANNATH PROSAD SINGH CHOWDHURY Vs. SURAJMUL JALAL

JUDGEMENT

(1.) ON this appeal as it was lodged various points were presented which have not been insisted upon in argument before their Lordships' Board. The one matter to which counsel for the appellant have confined themselves is the question of the rate of interest and whether it should be simple or compound from the date either of the decree of the High Court or, as put by one of the learned Counsel, the decree of the Court of first instance.

(2.) REALLY this matter is determined beyond question by Order 34 of the Code of Civil Procedure. This may, for this particular case of mortgages, differ from the general provision of Section 34 of the Code; but if so, the particular avoids the general. Under Rule 2 of that order it is provided: In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a decree (a) ordering that an account be taken of what will be due to the plaintiff for principal and interest on the mortgage, and for his costs of the suit (if any) awarded to him on the day next hereinafter referred to...and directing (c) that if the defendant pays into Court the amount so due on a day within six months from the date of declaring in Court the amount so due to be fixed by the Court, the plaintiff shall deliver up to the defendant, or to such person as he appoints, all documents in his possession...but (d) that, if such payment is not made on or before the day to be fixed by the Court, the defendant shall be debarred from all right to redeem the property.

(3.) THAT is very well paraphrased by Lord Davey in delivering the judgment of the Board in the case of Rani Sundar Koer v. Rai Sham Krishen [1907] 34 I.A. 9. At page 21 he says: Their Lordships have no hesitation in expressing their concurrence with the High Court of Calcutta, not only in allowing interest after the fixed day, but also in allowing interest at the Court rate and not at the mortgage rate. They think that the scheme and intention of the Transfer of Property Act was that a general account should be taken once for all, and an aggregate amount be stated in the decree for principal, interest and costs due on a fixed day, and that after the expiration of that day, if the property should not be redemeed, the matter Should pass from the domain of contract to that of judgment, and the rights of the mortgagee should thenceforth depend, not on the contents of his bond, but on the directions in the decree.