Decided on June 21,1929



Binod Mitter, J. - (1.) THESE are two consolidated appeals against two decrees dated December 11, 1923, of the High Court of Judicature at Allahabad, setting aside two decrees dated January 18, 1921, of the Court of the Subordinate Judge Moradabad.
(2.) THE two suits in which the decrees of the High Court were passed were brought by the plaintiffs-respondents separately against the appellants to redeem two items of properties covered by a mortgage dated March 23, 1905, namely, 13 Biswas of the village Sadat Bari and the whole village Rudain, respectively, and the question for determination now is whether the deposit made by the plaintiffs under Section 83 of the Transfer of Property Act on June 29, 1912, was sufficient. On March 23, 1905, the original mortgagors executed a mortgage deed in favour of the appellant Shib Chandra and another who, on the same day executed a lease in favour of the mortgagors in respect of the mortgaged premises and under that lease the mortgagors agreed to pay Rs. 2,325 in two instalments per annum (which also was the agreed amount of interest under the mortgage deed), together with the sum of Rs. 1,526 as Government revenue on the properties. It was agreed that if there was any deficiency in the payment of interest or lease money then the amount should carry compound interest at the rate of one rupee per cent, per mensem. It was provided by the mortgage deed that each property could be separately redeemed in the month of June of any year on payment of the amount entered against it in the deed provided always that the interest on the whole mortgage money had been paid or tendered at the time of such redemption. The consideration stated in the mortgage deed was Rs. 35,000. The only sum the mortgagers ever repaid was Rs. 1,000 in January, 1907. On January 14, 1910, the mortgagees brought a suit in the Court of the Subordinate Judge of Moradabad (hereinafter referred to as the original suit against the mortgagors for recovery of Rs. 12,327-5, being the interest or lease money up to June, 1909, together with compound interest at twelve per cent, per annum as provided for in the mortgage deed and in the lease. The mortgagees further claimed interest pendent life and interest up to realization, and they also prayed for sale of the mortgaged properties in default of the payment of the amount that might be decreed in their favour and claimed possession of the mortgaged premises. The mortgagors contended that the whole of the Rs. 35,000 mentioned in the mortgage deed had not been advanced, but that a sum of Rs. 30,984 was only advanced and that the interest payable on the mortgage or the lease money should be proportionately reduced.
(3.) ON February 23, 1912, the Subordinate Judge decided that the sum actually advanced was Rs. 30,984, and that, therefore, the amount of annual interest or lease money was Rs. 2,058-3-6 and not Rs. 2,325, as stated in the mortgage deed and the lease. He accordingly passed a decree for Rs. 10,720-10-4 and interest thereon at the rate of six per cent, per annum until realization with costs amounting to Rs. 1770-2-8. He also gave the mortgagees a decree for sale under Order XXXIV, Rule 4, of the Code of Civil Procedure, 1908, in default of the payment of the decretal amount on or before August 22, 1912, and he further decreed that Rs. 12,812-7-3 would be due on that date. He further decreed possession of the mortgaged properties to the mortgagees, and they, on April 3, 1912, obtained symbolical but not actual possession. It appears that the Subordinate Judge did not allow any interest during the pendency of the original suit and the mortgagees (that is the present appellants) appealed against the decree of the Subordinate Judge to the High Court of Judicature at Allahabad and the High Court on January 27, 1914, varied the decree of the Subordinate Judge by allowing interest during the pendency of the suit to the extent of Rs. 2,706-2, and they allowed the costs of the appeal, which were fixed at Rs. 416-12-6. The decree of the Subordinate Judge was therefore increased by Rs. 3,122-14-6.;

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