EKTAR SIKDAR Vs. WAJUDDI TATI

JUDGEMENT

(1.) This appeal arises out of a suit for possession on redemption of a mortgage by way of conditional sale. The plaintiffs are the purchasers of the equity of redemption from the defendant No. 3, the original mortgagor. It may be mentioned that they were also prior mortgagees and that the defendants Nos. 1 and 2 deposited the amount of their mortgage in Court. Subsequently after the withdrawal of the deposit the plaintiffs purchased the equity of redemption. There are now two questions before us. The first is with regard to interest. The learned Judge of the lower Appellate Court has cut the interest down from 30 per cent to 12 per cent., referring to certain decisions of this Court. Bat since those case were decided, the decisions of their Lordships of the Privy Council in the oases of Aziz Khan v. Duni Chand 48 Ind. Cas. 933 : 23 C.W.N. 130 : 101 P.R. 1918 : 165 P.W.R. 1918 (P.C.) and LalA Balla Mal v. Ahad Shah 48 Ind. Cas. 1 : 23 C.W.N. 233 : 35 M.L.J. 614 : 16 A.L.J. 905 : 124 P.R. 1918 : 25 M.L.T. 55 : 180 P. W.R. 1918 : 29 C.L.J. 165 : 1 U.P.L.R. (P.C.) 25 : 21 Bom. L.R. 558 (P.C.) respectively have been reported. it appears to me that, in view of these later decisions, the Court has no option but to allow the defendants the rate of interest stipulated in the bond, which is 30 per cent. per annum.

(2.) The other question is with regard to a sum of Rs. 100. It was found by the 1st Court that as a matter of fact Rs. 300 was the money paid by the defendants on the bond in favour of the plaintiff. It was further found that the defendants were entitled to add to their dues this sum of Rs. 100 with interest at the rate mentioned in the bond. That Rs. 300 paid on the bond plus this Rs. 100 make a total of. Rs. 400, Bat in the ordering portion of the judgment and in the decree, the principal sum is mentioned as Rs. 300 and not Rs. 400. That formed the subject- matter of a cross-appeal in the lower Appellate Court, but the learned Subordinate Judge disposed of it with the words "cross appeal is dismissed." The defendants now urge that they ought to have that Rs. 100 with interest. On the other hand, it is said by the plaintiffs that there ought to be a remand for a finding with regard to this Rs. 100, and it is suggested that the plaintiffs are being prejudiced by being unable to advance arguments which they might have advanced if the cross appeal had been pressed in the lower Appellate Court. I see no reason to think that the cross appeal was not pressed and I think the defendants ought to have this sum of Rs. 100 added to their principal money.

(3.) The appeal will be decreed with costs in all Courts and a fresh account will be prepared on this basis. That the plaintiffs owe to the defendants Nos. 1 and 2 Rs. 300 with simple interest at 30 par cant par annum from the date of the advance to the date of the recovery of possession by the defendants and thereafter at 15 per cent per annum up to the date of the institution of this suit and also Rs. 100 with simple interest at 6 per cent. par annum from the date of the deposit to the date of the institution of the suit, The decree will be prepared in the form prescribed by the Code of Civil Procedure for a mortgage by way of conditional sale. The period of grace will be six months from the date of this decree. Shamsul Huda, J.