KISANRAO Vs. MANGNIRAM

JUDGEMENT

(1.) JACKSON , A.J.C. 1. This appeal arose from a suit on a mortgage for Rs. 3,500. Under the rule of damdupat the amount recoverable at the time of the decree was only Rs. 7,000 on the day on which the suit was filed. The lower Court has allowed interest from the date of suit to the date fixed for payment by the preliminary decree and the only question that I have to decide in appeal is whether the lower Court was right in doing so. It is contended on behalf of the appellant that the rule of damdupat prevents the interest included in the sum payable on the dies datus from exceeding the principal. I have been referred to a decision of this Court in Narayan v. Khiwaraj A.I.R. 1929 Nag, 117, in which it has been held that the rule of damdupat applies until the matter is removed from the domain of contract, that is, until the date fixed by the Court in the preliminary decree for sale. The question, however, does not appear to have been really considered as it is recorded that the counsel for the respondents admitted that the fourth ground of appeal must succeed, that ground being that no interest should have been allowed from the date of suit to the date of the decree, as the rule of damdupat covers this period. In Narain v. Nathmal A.I.R. 1922 Nag. 155 it has been held that the rule of damdupat applies only so long as the relation of creditor and debtor exists but not when the contractual relation has come to an end by reason of the decree; and the view may be inferred that the rule does apply until a decree is passed which would in effect mean up to the date fixed for payment. But that view has not been expressed and it is to be noted that in that case interest was actually allowed from the date of suit. Similarly, in Nanda Lal Roy v. Dhirendra Nath [1913] 40 Cal. 710 all that was held was that the rule of damdupat does not apply to the interest accruing after the date fixed for redemption; and it was not laid down affirmatively that the rule does apply to the period between the date of the suit and the date fixed for redemption.

(2.) SUNDAR Koer v. Rai Sham Krishen [1907] 34 Cal. 150 has been cited by the appellant. It is a Privy Council decision which does not deal with the rule of damdupat, but reliance is placed upon the following passage at p. 161: In the present case, their Lordships have no hesitation in expressing their concurrence with the High Court of Calcutta, not only in allowing interest after the fixed day, but also in allowing interest at the Court rate and not at the mortgage rate. They think that the scheme and intention of the Transfer of Property Act was that a general account should be taken once for all, and an aggregate amount be stated in the decree for principal, interest and costs due on a fixed day and that after the expiration of that day, if the property should not be redeemed, the matter should pass from the domain of contract to that of judgment, and the rights of the mortgagee should thenceforth depend, not on the contents of hie bond, but on the directions in the decree.

(3.) IT seem to me that the view taken in the last three cases cited is the correct view. Where the rule of damdupat applies, the contractual obligation, as regards interest, comes to an end as soon as the maximum limit of interest is reached and it is not correct to say that the contractual obligation remains until a decree is passed. When that obligation has come to an end before the suit is filed, the Court has discretion to award interest from the date of suit over and above the amount of interest allow ed by the rule.