The appellants,then applied to the punjab High Court by a writ petition, which was dismissed in limine.
Under s. 2 h , principal money in relation to a mortgage deed executed by an evacuee inter alia means in the case of mort gage deed which has number been executed by way of renewal of a prior mortgage deed, the sum of money advanced by way of loan at the time of the execution of the mortgage deed.
mortgage and that any sums received over above this would go to reduce the principal.
In October 1949, Bibi Chand Tara was declared an evacuee.
The Custodian took the matter in appeal to the Appellate Officer.
Eventually the.
There was a sale in that execution proceeding, but it was set aside on the application of the Assistant Custodian, Patna.
Appeal by special leave from the judgment and order dated July 30, 1962 of the Punjab High Court Circuit Bench at Delhi in Civil Writ No.
the date of the.
Another house which was also included in the mortgage bond was sold later and the sale money was again appropriated towards the decree.
The Judgment of the Court was delivered by Wanchoo, J. The only question raised in this appeal by special leave from the judgment of the Punjab High Court is the interpretation of s. 9 1 of the Evacuee Interest Separation Act, No.
This application was resisted by the Custodian on a number of grounds.
Eventually the appellants put the decree in execution in November 1952 against the house in dispute for a sum of Rs.
The Appellate Officer held that on the words of s. 9 1 the entire account must be made afresh on the basis of interest being ,,allowed at five per cent per annum simple on the principal amount from .
G. Patwardhan and B. R. G. K. Achar for the respondents.
40.000 and.
It appears that certain sums were received by the appellants before they had filed the suit.
amount before the Competent Officer under the Act inasmuch As the property in dispute was companyposite property in Which, the evacuee had mortgagors interest while the appellants who are number evacuees had mortgagees interest which had ripened into a decree for sale.
25,000 and interest was provided at nine per cent per annum companypoundable annually.
Thereafter they ,obtained special leave from this Court, and, that is how the matter has companye before us L S5SCI 6 The Act deals with separation of the interest of an evacuee from the interest of a number evacuee in companyposite properties.
This application was also dismissed as it was filed before a wrong authority.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
60,000 and odd,.
He therefore held that in the absence of special provision to the effect that past accounts should be reopened, the amount received as interest prior to the decree companyld number be taken into account.
402 D of 1962.
It further appears that certain Zamindari properties which were also included in the mortgage had been sold after the final decree and the money appropriated towards the decree.
and in this application their claim was for Rs.
The companytention of the Custodian was that the appellants were number entitled to any interest higher than five per cent per annum simple from the date of the mortgage under s. 9 1 of the Act.
The Competent Officer further held that the principal money companyld number be reduced on account of any excess realisation of interest when such excess was realised before the Act came into force.
Their application for a leave to Appeal to this Court was also dismissed.
Out of the properties companyered by the bond, one of the properties was sold to Bibi Chand Tara on October 23, 1937 subject to the earlier mortgage of 1928.
companycerned with one ground based on s. 9 1 of the Act.,
Therefore the Custodian claimed that the entire transaction should be reopened from the date of the mortgage and the amounts already received by the appellants should be taken into account after allowing interest at five per cent per annum simple to them and if, more interest had been paid that should be credited towards the principal and after such accounting the sum if any due on the mortgage companyld be claimed by the appellants.
Thereafter the appellants made an application before the Assistant Custodian for the recovery of the mortgage money claimed by them.
LXIV of 1951 hereinafter referred to as the Act .
appellants filed a claim for the same.
The question arises in this way.
102 of 1964.
The companysideration of the bond was Rs.
The Competent Officer held that though the provisions of s. 9 1 were retrospective to a certain extent they companyld number be stretched to mean that if a mortgagee had already realised interest at a rate exceeding five per centum Per annum simple even before the Act came into force the excess would go to liquidate the principal amount proportionately.
The appellants were mortgagees of certain properties, including a house, on the basis of a, mortgage bond dated July 19.
Goburdhan for the appellants.
Certain other sums were also received after the preliminary and final decrees.
In 1939 the appellant filed a suit against the orignal mortgagors and others including Bibi Chand Tara for the amount due under the mortgage.
A preliminary decree was passed in their favour in March 1942 and the final decree followed in April 1945.
In the present appeal we are only.
He therefore ordered that 1 the amount of interest exceeding five per cent per annum before the institution of the suit would number reduce the principal amount, 2 the appellants would be entitled to simple interest at six Per cent per annum, i.e. the rate at which interest was decreed in their favour in the mortgage suit from the date of the institution of the suit till November 26, 1952 on the principal sum only, 3 the appellants would be entitled to interest at five per cent per annum simple from November 27, 1952, and 4 the appellants would also be entitled to companyts of the suit decreed in their favour.
He therefore allowed the appeal and set aside the order of the Competent Officer and ordered account to be taken in the manner indicated by him.
The actual amount due was ordered to be worked out on these principles.
