THENAPPA CHETTIAR Vs. MARIMUTHU NADAN

JUDGEMENT

(1.) The plaintiffs are mortgagees of certain property including items Nos. 2 and 4. The 3rd and 4 defendants are prior mortgagees of those two items. The 3 defendant sued on his mortgage in O.S. No. 2 of 1900, making 4 defendant a party but not the plaintiffs. The 3rd defendant himself purchased item No. 2 at the sale held under the decree obtained by him in his suit, and the 4 defendant purchased item No. 4 at the same sale, the plaintiffs have now to redeem the prior mortgages, and the present question is as to the conditions of redemption. The plaintiffs claim to proceed on the footing that the mortgages were enforced by the decree in O.S. No. 2 of 1900 and to take the account on that footing; the prior mortgagees claim payment on the footing that their mortgages are still existing. The practical question is one of the rate of interest to be paid on the mortgage money. In our opinion, the decision of the Privy Council in Umes Chunder Sircar V/s. Zahur Fatima (1839) I.L.R. 18 C. 164 concludes the question of the terms of redemption, and we cannot, therefore, follow the case of Gangadas Bhattar V/s. Jogendra Nath Mitter (1907) 11 C.W.N. 403. The learned judges do in that case, no doubt, find themselves able to hold that their decision is not inconsistent with that of the Privy Council. But we find ourselves unable to reconcile the two cases. It is true that the Privy Council allow interest at the contract rate only up to the date on which Zahur, the prior mortgagee, took possession under the sale held in execution of her own decree, but the reason for that is clearly explained by their Lordships at the top of page 180 of the report in the Calcutta series, and there is nothing to indicate that the interest after possession, which they held might fairly be taken to be equivalent to the profits, was interest at the post diem rate awarded by the Court, and not interest at the rate provided by the contract.

(2.) On the other hand, their Lordships observations show clearly, we think, that the decree in the prior mortgagees suit is to be disregarded in considering the terms of redemption as between the prior and puisne mortgagees.

(3.) After pointing out wherein lies the Court's power to regulate interest after decree, their Lordships continue: "the decree can only operate as between the parties to the suit and those who claim under them. The plaintiff getting the security of a decree has his interest reduced in the generality of cases. But the plaintiff in this case comes to take away from Zahur the benefit of the decree. It would be unjust if he could use the decree to cut down her interest, while he deprives her of the whole advantage of it. His case is that, as to him, Zahur is still but a mortgagee, and if so, she should be allowed such benefit as her mortgage gives her. If Zahur had not got a decree and the plaintiff had come to redeem her mortgage, he must have paid whatever interest her contract entitled her to; and the Court would have had no jurisdiction to cut it down, and that is the position in which the parties are placed by the decree in this suit."