Krishnaswami Nayudu, J. -
(1.) THE Judgment -debtors in a mortgage decree in O. S. No. 70 of 1939, Sub Court, Amalapuram, are the appellants. The appeal is against the order dismissing the judgment -debtor's application to determine the amounts due by them under the decree and to order restitution of such amount as might have been overpaid by them to the decree -holder in the course of the execution of the decree.
(2.) A preliminary mortgage decree was passed by the High Court in App. No. 205 of 1942 on 13 -7 -1944. The decree directed the judgment -debtors to pay on or before 13 -10 -1944 or any later date upto which time for payment may be extended by the Court a sum of Rs. 9892 -12 -9 with further interest on Rs. 5852 -3 -0 at 6 per cent per annum from the date of decree till the date of payment. The other clauses of the decree are in conformity with form No. 5 of Appendix D, Schedule I, Civil P. C., (the form usually employed for a preliminary mortgage decree for sale). Clauses 2, 3, 4 and 5 of the decree in this case are, in fact, copy of the corresponding clauses provided in form No. 5. In pursuance of the preliminary decree a final decree was passed on 13 -3 -1945 which provided that as the payment directed by the preliminary decree inferred to had not been made the mortgaged property would be sold. The decree -holder filed E. P. No. 225 of 1947 for sale and in that application the Judgment -debtors did not raise any other objection except the contention that the interest provided for at 6 per cent, must be reduced to 51/2 per cent. In the present E. A. No. 94 of 1949 filed by the judgment -debtors for determining the amounts, their contention was that the amount for which the property was to be sold does not represent the amount that is really due under the preliminary decree passed by the High Court, and that the decree -holder, in addition to the amount recoverable under the decree, added interest on costs and on interest on the principal amount which, it is urged, was not provided under the preliminary decree and that, therefore, the decree -holder would not be entitled to recover the same. The principal sum as appears from the preliminary decree is only Rs. 5852 -3 -0 and the amount which was directed to be paid on or before 13 -10 -1944 namely Rs. 9892 -12 -9 represents not only the principal of Rs. 5852 -3 -0 but includes within it the interest on Rs. 5852 -3 -0 till the date of the preliminary decree and the costs awarded. In so far as subsequent interest is concerned, the decree, therefore, provides only interest at 6 per cent, per annum on the sum of Rs. 5852 -3 -0 representing the principal sum and there is no specific provision in the decree as to any interest on costs and on interest on the principal.
(3.) IT is contended on behalf of the appellant that where no provision is made in the decree as to subsequent interest under the provisions of Section 34 Clause (2), Civil P. C., the decree being silent with respect to payment of such further interest, it must be held that the Court must be deemed to have refused such interest and there should therefore be no execution taken out for such additional interest. The power to award subsequent interest in mortgage decrees has now been conferred under Act 29 of 1929 and a provision is incorporated in Order 34, Rule 11, Civil P. C., which empowers the Court to award interest in mortgage decrees. Rule 11 of Order 34, Civil P. C. says;
"In any decree passed in a suit for foreclosure, sale or redemption (in this case it is a suit for sale), where interest is legally recoverable, this Court may order payment of interest to the mortgagee. ..... (the several categories are noted.) (a) interest up to the date of payment which will comprise interest on the principal amount due and declared on the mortgage, on account of costs awarded to the mortgagee, and on any amount adjudged to be due to the mortgagee as for costs, charges and expenses, if any, incurred in respect of the mortgage security upto the date of the preliminary decree."
Rule 11, Clause (b) deals with subsequent interest, that is, interest upto the realisation or actual payment which may be awarded by the Court if it considers reasonable on the aggregate of all the sums referred to in clause (a) and interest calculated therein. The Court is, therefore, empowered to award interest, such power having been conferred specifically under Order 34, Rule 11, Civil P. C., while prior to the amendment by Act 29 of 1929 Courts were exercising such power under Section 34, Civil P. C. But the question for determination here is whether the Court has, in pursuance of the power under Order 34, Rule 11, Civil P. C., exercised its power in awarding subsequent interest after the period provided for payment end, if so, to what extent.;