Decided on November 10,1900

Maharajah Of Bharatpur Appellant
Ram Kanno Dei Respondents


HOBHOUSE, J. - (1.) THIS is an appeal from an order made in execution proceedings. The plaintiff, now appellant, is a mortgagee; and the respondent represents the mortgagor who was defendant and is dead. The mortgage was made on December 11, 1882,'to secure three lacs of rupees. The mortgagor failed to pay, and the mortgagee filed a plaint which is not in the record, but which from the Subordinate Judge's recital in his judgment appears to have been of an ordinary nature, praying for payment of principal and interest on a day to be fixed by the Court, and for sale in default of payment. The frame of the suit, however, so far as it explains the decree, is most properly taken from the decree itself, on the construction of which the whole case turns.
(2.) THE decree bears date January 7, 1886. It will make the discussions on it clearer if the material expressions in it are arranged under separate heads. (a) The plaintiff seeks the following reliefs: That the principal and interest due up to this time, together with such further interest as may accrue due from the date of the filing of the plaint up to the date of payment, and also the costs of this suit with interest thereon up to the date which may be fixed by the Court may be ordered to be paid; (b) It is ordered and decreed that the plaintiff's entire claim be decreed: (c) with interest pendente lite on the principal at the rate claimed and costs of the suit; (d) The plaintiff will get future interest at 8 annas percent, on the amount of decree and costs; (e) Defendant to pay within six months the sum of Rs. 3,00,000 on account of principal"; Then follow directions for payment within the six months of specified sums of money under different heads: I. Interest included in the claim, i.e., up to date of suit; II. Interest pendente lite at the rate of 9 per cent; III. Future interest to 20th January, 1886, at 6 per cent.; IV. Future interest to 20th July, 1886, at 6 per cent.; V. Costs of suit. (f) In the event of default in payment of the entire decretal amount, the hypothecated property be sold by auction in satisfaction of the decretal amount by enforcement of the lien, and in the event of any portion of the decretal amount remaining unpaid, the balance of the decretal amount be recovered from the other property of the debtor deceased. The plaintiff has made applications for execution from time to time under which he has realized large sums. The last application was made on April 14, 1896, and on that occasion the defendant for the first time raised the objection that according to the decree no interest is payable subsequently to the day fixed for payment of the specified sums-namely, July 20, 1886.
(3.) ON September 25, 1897, the Subordinate Judge, who was not the judge who made the decree of 1886, allowed the objection. His reason is given thus: It is an admitted fact that the plaintiff claims to recover interest even after the 20th of July, 1886, which was the date fixed by the Court for the payment of the mortgage money under Section 88 of Act IV. of 1882. I have read the judgment and the decree of the original suit, and they are as clear and specific in awarding interest to the plaintiff up to the 20th of July, 1886, as could be desired. Neither of these documents admits of any doubt, and I hold that according to those documents the decree-holder is entitled to interest up to the 20th of July, 1886, but not after that.;

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