MAHA PERSHAD SINGH Vs. SURENDRA MOHAN SINGH

JUDGEMENT

(1.) On the 12 February 1906, the plaintiffs-respondents obtained against the defendants- appellants and certain other persons a decree nisi on a mortgage, dated the 21st, December 1896. The operative part of the decree runs thus: "The defendants do pay within 6 months from the date of the decree to the plaintiffs Rs. 5,36,038-11-6 principal, interest and compound interest at the rate mentioned in the bond sued upon, i. e. Rs. 7-8 per cent. per annum from the date of institution, i.e., 20 June, 1904, to date of realisation and Rs. 7,990- 8 as costs of the suit besides interest at 6 per cent. per annum from the date of decree to that of realisation: that in the event of non-payment, the mortgaged properties will be sold for the realisation of the decretal amount: that if the sale proceeds of the mortgaged properties be not sufficient, the Sudha Bharna property of defendant No. 2 will be sold by auction." No payment was made within 6 months and an order absolute for sale was made on the 31st August 1906. The decree was affirmed by this Court on appeal on the 3 April 1907.

(2.) The decree nisi dated the 12 February, 1906, was not in proper form and no decree following the order absolute for sale was drawn. The attention of this Court also was not drawn to the defect by either party.

(3.) The plaintiffs-respondents have now applied for execution of the decree by sale of the mortgaged properties. They have calculated interest and compound interest at the bond rate, i. e., Rs. 7-8 per cent. per annum in ascertaining the amount payable under the decree. The contention of the defendants-appellants is that the plaintiffs are not entitled to any interest after the 12 August, 1906, the date when the period of grace expired and they say that the words "date of realisation" in the preliminary decree mean the date when the amount was payable under the decree and not the date of actual realisation of that amount.