JUDGMENT Henry Richards, Kt. C.J. and Piggott, J.
1. This appeal arises out of a suit for foreclosure. The mortgage is a very old one, being dated the 9th of March, 1869. The mortgage proved for the payment of the sum of Rs. 300 with interest at 1-8 per cent. per mensem, in one lump sum upon a certain specified date, four years from the date of the mortgage. It then provided that if the money was not paid on that date the property should be the absolute property of the mortgagee. There was no stipulation of any kind for the payment of interest after the date fixed; and the mortgage, as mentioned above, was made before the passing of the Transfer of Property Act. Numerous defences were raised in the courts below.
2. The court of first instance gave a decree for foreclosure ascertaining the interest at the sum of Rs. 3,178-4-7 together with the Rs. 300 for principal, and provided that if payment was not made on the 20th day of July, 1912, the defendants should be absolutely debarred from all right to redeem the mortgaged property.
3. The lower appellate court modified the decree of the court below to this extent that it ascertained the amount due as being Rs. 300 principal together with interest at 1-8 per cent, per mensem for four years, that is to say, Rs. 300 for principal, and Rs. 216 for interest making a total of Rs. 516. Six months were allowed for payment, during which period of sis months interest at the rate of 6 per cent. per annum should run.
4. The plaintiffs come here in second appeal contending that the decree of the court of first instance was correct and that the interest should have been allowed at the contractual rate during the whole period up to the time fixed for payment. In the course of the argument the learned vakil on behalf of the appellants contended that, even if he was not allowed the contractual rate of interest he should be allowed some rate of interest under the provisions of the Interest Act.
5. The main proposition of the appellants is that in all cases of mortgage by conditional sale, interest at the contractual rate runs up to the time fixed for payment and that this is the necessary consequence of the relationship of mortgagor and mortgagee whether the payment of interest is or is not provided for by the deed. The question is by no means free from difficulty. In the case of Gudri Koer v. Bhubaneswari Coomar Singh (1891) I.L.R. 19 Calc., 19 it was held, under circumstances which we cannot distinguish from the present, that post diem interest was not recoverable. This case was referred to and approved by the majority of the Court in the Full Bench ruling of Moti Singh v. Ramohari Singh (1897) I.L.R., 24 Calc., 699. The question of post diem interest came before their Lordships of the Privy Council in the case of Mathura Das v. Raja Narindar Bahadur (1896) I.L.B., 19 All., 89. In that case ( which was one of a simple mortgage) this High Court had refused to allow post diem interest. This decision was overruled by their Lordships of the Privy Council: but a perusal of the judgment shows that their Lordships based their judgment on the particular terms of the mortgage deed and in particular upon a covenant in that deed which provided that the mortgagor would not transfer the mortgaged property until the full principal and interest had been paid. The stipulations in that deed upon which their Lordships relied are entirely absent from the mortgage in the present case. Under these circumstances, we see no sufficient reason to interfere with the decision of the court below.
6. With regard to the point that interest should be allowed under the Interest Act, it seems extremely doubtful, having regard to the time which has elapsed since the deed was entered into, whether any interest could be reasonable under that Act, but in any event we do not think that the sum which could be awarded under that Act would be a charge on the property. In the present case, the duty of the court is to ascertain what sum is now charged on the property for principal and interest.
7. Under these circumstances, we think that the decision of the court below was correct, and we accordingly dismiss the appeal with costs. The time for payment is enlarged so as to run for four months from the date of this decree. Simple interest at 6 per cent, per annum will continue to run as decreed by the court below. The decree will not issue until the appellant or respondent has made good the deficiency.