KUSUM KUMARI Vs. DEBI PRASAD DHANDANIA
HIGH COURT OF BOMBAY
DEBI PRASAD DHANDANIA
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George Lowndes, J. -
(1.) THE suit out of which these consolidated appeals arise was filed before the Settlement Officer of the Sonthal Parganas praying for the enforcement of a mortgage dated February 27, 1911. THE plaintiffs were in effect the mortgagees, and the principal defendant the representative of the mortgagor. A number of other parties were joined as interested, or possibly interested, in the mortgage, but none of them seem to have taken I part in the proceedings in India nor are they represented before the Board.
(2.) THE suit was duly transferred for trial to the Court of the Subordinate Judge of Bagalpur, who passed a preliminary mortgage decree dated June 20, 1927, in the usual form. He assessed the mortgage debt including costs payable at the expiry of six months from the above date at Rs. 4,12,662-13-0, and allowed the mortgagees further interest on this sum at the rate of six per cent, per annum until realization.
It is not disputed that the suit fell to be determined in accordance with the provisions of Section 6 of the Sonthal Parganas Settlement Regulation 3 of 1872, which restricts the allowance of interest in such cases. The section, upon the construction of which the decision of these appeals mainly turns, is as follows : 6.All Courts having jurisdiction in the Sonthal Parganas shall observe the following rules relating to usury, namely : (a) interest on any debt or liability for a period exceeding one year shall not be decreed at a higher rate than two per cent, per mensem, notwithstanding any agreement to the contrary, and no compound interest arising from any intermediate adjustment of account shall be decreed. (b) the total interest decreed on any loan or debt shall never exceed one-fourth of the principal sum, if the period be not more than one year, and shall not in any other case exceed the principal of the original debt or loan.
The learned Subordinate Judge applying these provisions found that the original advances by the mortgagees totalled Rs. 3,34,153-2-9, and that the interest recoverable must, therefore, be limited to that amount. From the resultant total he deducted repayments made from time to time by the representative of the mortgagor which left Rs. 4,02,595-6-9 still due, and which, with the costs allowed, made up the sum first above stated-to be referred to hereafter for convenience as the decretal amount.
(3.) THIS decree was confirmed on appeal by the Patna High Court. Leave to appeal to His Majesty in Council was refused, but special leave was granted in England to both parties by an Order in Council dated March 17, 1932, the appeals to be confined to questions relating to interest after the date of the institution of the suit.
On this matter both parties have grievances which are embodied in the present appeals. The principal defendant in the suit, the representative of the mortgagor, complains of the allowance of interest on the decretal amount at six per cent, until realization. The plaintiffs, the mortgagees, while seeking to uphold this part of the decree, complain that they have not been flowed interest pendente lite, i. e. , between the dates of institution and final; decree. These are the only points upon which their Lordships' judgment is sought.;
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