Ramendra Mohan Datta, J. - (1.) This is an application by the defendants judgments-debtors in a mortgage suit for the determination of the amount payable to the decree-holder under the preliminary and the final decrees dated September 2, 1955 and September 5. 1957 respectively. The matter is now pending in a reference proceeding under the said final decree before the Registrar of this court.
(2.) Under the preliminary decree it was ordered that a sum of Rs. 65,000/- as the principal and interest calculated upto the date of the institution of the suit amounting to Rs. 9026/5/3 were payable by the defendants to the plaintiffs under the mortgage. For the payment of subsequent interests the preliminary decree further provides the following viz: "together with such subsequent interest as may be payable under Rule 11 of Order XXXTV of the First Schedule to the Code of Civil Procedure 1908."
(3.) The final decree also provides for subsequent interest in similar language. It is contended that no rate is specified and as such no amount is payable by way of subsequent interest from the date of the institution of the suit. On behalf of the defendants it is further contended that both under Rule II of Order XXXIV of the Code and under Section 34 of the Code the fixation of the rate of interest is a matter which it to be in the discretion of the court and the rate under such provision must be a reasonable rate. The Court has to apply its mind to determine at what rate such subsequent interest is payable by the judgment-debtor to the decree-holder. No such judicial determination having been arrived at by the Court no such interest is to be determined at this stage. Accordingly, it should be deemed to have been refused.;