MOHA PROSAD SINGH Vs. RAMANI MOHAN SINGHA

JUDGEMENT

(1.) This appeal arises out of the action taken by the plaintiffs who obtained a decree nisi on their mortgage, on the 12 February 1905. The period of grace allowed by that decree expired on the 12 August, 1906.

(2.) The action taken by the plaintiffs was based on certain observations made by this Court in a judgment, in appeal from order No. 368 of 1907, bearing date the 5 December, 1907, to which a member of the present Bench was a party. [The decree nisi is under appeal to the Privy Council at the instance of the defendants-appellants before us.] The observations had reference to a decree absolute not haying been prepared as a necessary supplement to the decree nisi of the 12 February 1906. This Court observed: "We can only construe the decree without adding to or subtracting from it, though the plaintiff may yet take the necessary steps to have a proper decree drawn up by a tribunal competent to do so." This judgment, also, we may observe, is under appeal to the Privy Council at the instance of the plaintiffs.

(3.) The plaintiffs, therefore, have pursued a two-fold remedy. Their application to the Court below as to have a final decree drawn up following the order absolute for sale made by the Court of the Subordinate Judge, on the 31 of August 1906, and they prayed that interest after the 12 August 1906 should be given at the bond rate of Rs. 7-8-0 per centum per annum; and not at the Court rate of Rs. 6 per centum per annum. The Subordinate Judge has directed a final decree to be drawn up following the order absolute for sale, and he has directed further interest to run from the 13 August 1906, at the rate of 6 per centum per annum until actual realization.