MOHAMMAD ABDUL SATTAR Vs. MT. UMRAOBI

JUDGEMENT

(1.) THE plaintiff-appellant has been granted a decree for Rs. 8,418-10-8 against the three defendants-respondents as the legal representatives of one Shaikh Kalloo to whom the advances in suit had been given for trade purposes and for building a house. The defendants-respondents have been declared only liable to the extent of the assets of the deceased Shaikh Kalloo in their possession.

(2.) IN the present appeal I am only concerned with the lower Court's disallowance of interest pendente lite and of future interest from the date of decree to the date of realization. In para. 13 of the plaint, interest at the contract rate, of 1 per cent, per mensem during the pendency of the suit was claimed, as well as future interest at a rate to be fixed by the Court. No specific issue was framed with regard to these two items, and the judgment of 'the lower Court is absolutely silent as regards them. The plaintiff has, therefore, appealed to this Court for allowance of both these items of interest.

(3.) THE possibilities appear to me to arise as regards the attitude of the lower Court in this matter. It is perfectly possible, judges being only human, that the Subordinate Judge intently overlooked the question of the allowance or disallowance of interest pendente lite and future interest. It is equally possible that he did exercise a discretion in the matter bust remained silent as to his reasons therefore. In the case of the interest pendente lite, this silence was unjustifiable, although it may be possibly termed justifiable, however inadvisable, in the case of future interest. The mere presence of Sub-section (2), Section 34, on the statute book does not necessarily imply an invitation to Judges, when, they see reason to; disallow future interest, to refrain from stating these reasons, and obviously in the normal case it is highly desirable that the Judge should give his reason for disallowing such future interest. I have been referred to the remarks of their Lordships of the Privy Council in Hiralal Ichhalal v. Narsilal Chaturbhujdas [1913] 37 Bom. 326, but little help is to be derived from, that case in view of the absence of the full judgment of the learned District Judge, to which their Lordships refer. It was possible, of course, for the plaintiff to have applied to the lower Court to repair the omission, as to the disallowance of future interest, but it was not income bent on him to take this course and I am clearly of opinion that he was entitled to come on appeal to this Court, as he has done.