Decided on November 05,1997

Sonali Bank Appellant
M/S Beg And Beg Jute Incorporated Ltd. Respondents


MUSTAFA KAMAL,J. - (1.) The question raised in this appeal by leave by the plaintiff appellant Sonali Bank is, whether in the instant mortgage suit for sale the plaintiff is also entitled as of law to a decree for interest both pendente lite and till realization of the decretal amount.
(2.) The appellant Bank instituted Title Suit No, 31 of 1983 (later re-numbered as Title Suit No. 131 of 1984) originally in the 3rd Courts and Commercial Court No. 2, Dhaka which was a suit for recovery of money by sale of mortgaged property for a preliminary decree for Tk. 14,00,000/- with interest at 20% till realisation with a direction that the Schedule property be sold on failure to pay the decretal amount and to make the preliminary decree final on failure to pay as aforesaid and also praying for a personal decree against the defendants for the said amount. The Commercial Court Decreed that suit for an amount of Tk. 8,85,485.39 payable in quarterly instalments of Tk. 50,000/- but allowed no interest as prayed for, by judgment and decree dated 24-12-86. The appellant Bank took an appeal to the High Court Division, F.A. No. 91 of 1987, against the said decree on the ground that interest on the decretal amount pendente lite and till realization was wrongly refused by the trial Court. By the impugned judgment dated 1-4-90 a Division Bench of the High Court Division dismissed the said appeal holding that the commercial Court had exercised its discretion in refusing interest to the plaintiff on the decretal amount on valid ground.
(3.) Leave was granted to consider "the submission of the appellant that award of interest on the decretal amount pendent lite is mandatory available to the plaintiff under Order 34, Rules 2, 4 and 11 of the Code of Civil Procedure in a suit for sale of mortgaged property. Interest should also have been allowed on the said sum from the date of the decree till realisation of the same. The High Court Division has failed to properly construe order 34 of the Code of Civil Procedure and has failed to properly construe the facts of the present case as also the decisions in the case of Dawoodbhai Kassamji Matiwalla vs. Shaikhali Alibhoy, AIR 1953 (Bom) 445 and Kishen Raj vs. Radhalal, AIR 1958 (Rajasthan) 145, cited at the Bar.;

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