9 per cent, gave the plaintiff a decree for maintenance from the date of suit
at the rats of Es. 15 per mensem., dismissing the claim for arrears of
maintenance and for recovery of the jewels. In framing its decree,
however, the Court omitted to provide for the payment to Government
of the court fee on that part of the plaintiff's claim which bad been
An appeal was accordingly filed on behalf of Government to recover
the court-fee on such portion of the plaintiff's claim.
Munshi Ram Prasad for the appellant.
The respondent was not represented.
STRAIGHT, J. This appeal is of a very unusual character, the
Secretary of State, appellant, having been no party to the litigation
below and his right to appeal only constructively arising under the
terms of ss. 411 and 412 of the Code of Civil Procedure. The respon-
dent, Musammat Bhagwanti, who does not appear and is  not
' First Appeal No. 125 of 1689, from a decree of W.T. Martin, Esq., District
Judge of Mirzipur, dated the 16th March 1889,
(1) 9 A. 64.
13 All. 329
INDIAN DECISIONS, NEW SERIES
1891 represented, brought a suit against Hardeo Das, Earn Kishan, Murlidhar
FEB. 11. and Binda Prasad for recovery of arrears of maintenance amounting to
Es. 812, for restoration of ornaments withheld from her, valued at
APPEL- Rs. 4,600, and for a declaration of her right to future maintenance at the
LATE rate of Rs. 15 per mensem. The suit was instituted by the plaintiff as a
CIVIL. Pauper on the 2nd May, 1888, and the learned Judge, having dismissed the
first two items of the plaintiff's claim, gave her Es. 172-8-0, being main-
13 A. 326= tenance at the rate of Es. 15 per mensem from the date of the suit to the
11 A W.N. date of the decree, and declared her right to maintenance thereafter ab
(1891; 97. the rate of Es. 15 per mensem. The decree, to be precise, was expressed
thus: " That Es. 172-8-0, duo to the plaintiff on account of the
maintenance from the 2nd April, 1888, the date of the suit, to this day,.
be allowed to the defendants as the costs due to them in proportion to the
amount dismissed, or Es. 5,412, but that the defendants do pay out of the
plaintiff's costs such amount as is payable by the plaintiff to the Govern-
ment. Or in other words, a decree be passed in favour of the plaintiff for
recovery of maintenance from this day at Es. 15 per mensem, defendants,
being entitled to no costs. The defendants shall pay the plaintiff's costs
in proportion to the amount decreed."
The effect of this decree is that the measure of the plaintiff's costs
was declared to be the amount payable by the plaintiff to Government,
and the measure of the defendants' costs was declared to be Es. 172-8-0
arrears of maintenance decreed. It will thus be seen that in the decree
of the learned Judge no provision was made for paymenc by any person to
the Government of the court fee on that portion of the plaintiff's claim
which was dismissed, namely, Es. 5,412, on which the court-fee would be
Es. .250. It is this omission in the decree of the learned Judge which
is the subject of complaint in this appeal by the Secretary of State.
I am constrained to say that in my opinion a most inconvenient
course has been adopted, and that, instead of coming to this Court,
with an appeal, the proper method would have been for the Secre-
tary of State, through the Collector of Mirzapur, to apply to the learned
 Judge who passed the judgment and decree, to review his judgment
and reframe the decree in such a way as to effect the object at which
this appeal is aimed. Looking to the language of s. 411 of the Code of
Civil Procedure, read with S.-412, I am not prepared to say that the Secre-
tary of State cannot properly be regarded as a party to the litigation so
as to be in a position to prefer such an appeal as that which is before us.
In the case of Janki v. The Collector of Allahabad (1) my brothers Brod-
hurst and Tyrrell held, that in execution-proceedings arising out of a pauper
suit the Secretary of State who has obtained an order under s. 411 may
be regarded as a party to the suit within the meaning of s. 244. I am not
prepared to hold that that was an erroneous view, and, adopting the prin-
ciple therein enunciated, it seems to me therefore that it was open to the
Secretary of State, as being a party aggrieved by the decree below, to prefer
When, however, I come to deal with the policy and propriety of such
an appeal, I can only remark that I think we might well have been spared
it. Musammat Bhagwanti apparently is a Hindu widow with such small
means that she was constrained to come as a pauper to obtain the
assistance of the Court for the purpose of wresting from the hands of the
male members of her husband's family the small allowance of maintenance
(1) 9 A. 64.
SRI NIWAS BAM PANDE V. U. NARAIN MISR 13 All. 331
which has been decreed to her. The amount involved is, after all, to
Government a very trifling one, and all the delay and expense that has
been incurred in preferring this appeal might well have been avoided.
However, we have no alternative but to administer the law as we find it.
The terms of s. 412 are, in my opinion, mandatory, and it was obligatory
upon the learned Judge below when he passed his decree to provide in that
decree for payment by the plaintiff of the court-fees upon that portion of
her claim which was dismissed, namely, Rs. 250. The result of this view
is that the plaintiff will have to pay many months of her small maintenance
allowance of Rs. 15 a month before she is quit of her liability to Government.
Looking to her pauper position, I cannot help saying that I think the case
was one  in which the Government might have refrained from prefer-
ring this appeal. The appeal is decreed, and the judgment and decree of
the Court below are modified in this way that a declaration must be.
inserted in the decree to the effect that the sum of Rs. 250, court-fee
payable in respect of that portion of the plaintiff's claim which was dis-
missed, is due from the plaintiff, Bhagwanti, to the Secretary of State, who
will recover it in the same manner as the costs of suit are recoverable
under a decree. The other defendants to the suit have been cited here as
respondents for no earthly purpose or reason that I cnn see, because under
s. 412 no power existed in any Court to order them to pay the costs cf
that portion of the claim of the pauper plaintiff which was dismissed.
The appeal is decreed in part, qua Musammat Bhagwanti, but without
costs, and the decree will be amended in the manner I have indicated.
As to the other respondents, the appeal is dismissed with costs.
TYRRELL, J. I concur.
Appeal decreed qua Musammat' Bhagwanti.
Appeal dismissed qua the other respondents.
13 A, 330 = 11 A.W.N. (1891 66.
Before Mr. Justice Straight and Mr. Justice Tyrrell.
SRI NIWAS RAM PANDE (Plaintiff] y. UDIT NARAIN MISR AND
ANOTHER (Defendants) * [llth March, 1891.]
Mortgage-bond Interest post diem Damages Act IV of 1862 (Transfer of Properly
Act), ss, 67 and 86.
Interest post diem on A mortgage-bond for a certain term and containing no
express provision as to the payment of pest dion interest is nothing else than
damages for the breach of contract.
Such interest cannot be regarded as a mere continuance of the ad diem interest
due pn the mortgage-bond, and. as such, as forming an integral part of the
mortgage-debt, nor even as resembling such interest and forming a " charge "
upon the property, though nominally damages. In respect of post diem interest
given by way of damages no distinction is to be drawn between simple bonds and
mortgage-bonds. Monsab Ali v. Gulab Chand (1) ; and Bhaywant Singh v.
Darya Sircj (2) followed ; Cook v. Fowler (3) ; Biihen  Dayal v. Udit
Narain (4) ; and Bajpati Singh v. Kesh Naruin Singh (5) referred to.
[N t F., 21 P.L.R. (1903) = 25 P.R. (1902) ; F., 6 C.P.L.R. 22 ; Rel., 8 C.PiL.R. 95 ;
15Ind. Gas. 911 (913) = 15 CL.J. 684 ; R., 17 A. 581 ; D., 22 B. 107.]
' First Appeal, No. 203 of 1888, from a decree of Babu Brij Pal Das, Subordinate
Judge of Gorakhpur, dated the 7th September 1888.
(1) 10 A. 85. (2) 11 A. 416. (3) L.R. 7 H L. 27,
(4) 8 A. 486. (5) 10 A.W.N- (1890) 549.
13 A. 326 =
13 AIL 332
INDIAN DECISIONS, NEW SERIES
13 A. 880 =
11 A.W N.
IB this case the plaintiff sued for himself and as heir fco his deceased
brother, Shiam Narain Pande, to recover the sum of Rs. 15,156 together
with interest at the rate of 8 annas per cent, per mensem, in all Bs. 25,822
As. 7, from the defendants, Udit Narain Misr and Sarju Prasad Misr, by
8a ^ e f Property mortgaged under a bond, dated the 8th September 1879.
^" ne debt secured by the mortgage was expressed to be payable with interest
at 8 annas per cent, per mensem, in one lump sum at the expiration of
two years from the date of the bond, but no provision was made for the pay-
menb of post diem interest. The defendants pleaded as their main ground
of defence that the plaintiffs were not entitled to interest after the day
fixed for payment of the money due under the bond. The Court of first
instance gave the plaintiffs a decree for the principal amount secured with
interest for two years at the rate agreed upon, but dismissed the rest of
the claim. The plaintiff then appealed to the High Court.
Pandit Ajudhia Nath and Munshi Jwala Prasad for the appellants.
Munshi Kashi Prasad and Munshi Ram Prasad for the respondents.
STAIGHT and TYRRELL, JJ. In this appeal by the plaintiff in the
suit only two questions arise. The first is whether, upon a proper inter-
pretation of the mortgage of the 18th December 1879, provision-is expressly
or impliedly made for the payment of post diem interest, and the second.
whether, such a provision being absent, and the right of the plaintiff to such
interest sounding in damages, such damages form an integral part of the
amount due under the mortgage, and in that way should be regarded as
secured thereby, or .at least as money " charged " on the immoveable
property covered 'by the mortgage.
 Upon the first point I have no doubt as to the true nature of the
instrument, namely, that it was for a certain term, i.e., two years, within
which period the principal, Rs. 15,156, together with interest at 8 as. per
cent, per mensem was to be paid up in "a single sum ; " and further, that
it only provided for payment of interest "ad diem," and not "post diem."
It says : " in case of our being unable to pay the whole of the principal
and interest due hereunder on the promised date, the said Pandeys, credi-
tors, shall be at liberty to recover the principal and interest of this bond
in a single sum and to a farthing by auction sale of the hypothecated pro-
perty and from our other moveable and immoveable properties in anyway
they may like." In face of such terms ns these, it seems to me impossible
to say that any covenant for "post diem" interest can ba implied, unless
we are prepared to go the length of holding that when once the relation of
mortgagor and mortgagee is established under an instrument for a specified
term, there is always an imperative implication of such a covenant. There
the mortgagors undertook to pay up the principal and interest within a
specified time in "a single sum," and, if not paid upon that date, certain
clearly defined consequences were to follow. It is not denied in the present
case that the money was not paid as agreed, nor had it been paid up to the
date of the institution of the suit on the 30th July 1888. I have no doubt
that the claim of the plaintiff for interest after the 18th December 1881
could only be treated as one for damages to be assessed by the Court
trying the suit and not for interest due under a covenant, express or
implied. In Cook v. Fowler (1) Lord Cairns, after finding the instrument
then in question to be a warrant-of- attorney and defeasance to secure
(1) L.E. 1 H.L. 27.
VII] SSI NIWAS RAM PANDE V. U. NARAIN MISR 13 All. 33*
a debt up to a certain day without any mention of subsequent interest, 1891
observes : " If so, according to the well-known principle which has been MARCH 11.
referred to in many cases, and which may be taken most conveniently
from a note to the case otMounson v. Redshaw (1), any claim in the nature APPEL-
of a claim for interest after the date up to which interest was stipu- LATE
lated for would be a claim, really, not for a stioulatad sum and interest but CIVIL
for damages ; and then it would ba for the  tribunal before which
that claim was asserted to consider the position of the claimant and 13 A. 330 =
the sum which properly and under all the circumstances should be awarded 11 A.W.N.
for damages." In the same case Lord Selborne remarked : " Although (1891) 66.
interest for the delay of payment post diem ought to be given, it
is on the principle, not of implied contract, but of damages for a
breach of contract." This view has bean adopted and followed by this
Court in Mansab Ali v. Gulab Chand (2); Bhagwant Singh v. Daryao
Singh (3) ; Rajpati Singh v. Kesh Narain Singh (4); and Bishen Dayal v.
Udit Narain (5). The first point is therefore decided against the appellant.
Upon the second point Pandit Ajudhia Nath addressed to us a very,
able argument, the main object of which was to show that the cases
of Mansab Ali v. Gulab Ghand (2) and Bhagwant Singh v. Daryao
Singh (3) decided by the learned Chief Justice and my brother Tyrrell
and above referred to were wrongly decided, and that the question
involved is one that we might well refer to a Full Bench. I have heard the
learned pleader at length and have carefully examined all the author-
ities cited by him, and I not only see no reason to doubt, but I
entirely concur in the judgments in those two cases and in the reason-
ing upon which they proceeded. As this opinion of mine, however,
has the effect of committing at least a majority of the Court to a particular
view, I think it well briefly to consider Pandit Ajudhia Nath's argu-
ment and the cases to which he has referred. His first position was that
a broad distinction must be drawn between simple bonds and mortgage-
bonds, as in the case of tbe latter an absolute presumption is always to
be drawn that interest is intended to run on after due date as a charge on
the property ; and he laid stress upon the fact that in tbe case of Cook v.
Fowler (6)the document in suit was not a mortgage. At a subsequent stage
of his argument the learned pleader admitted that he had perhaps put his
contention too high, and he then urged that, conceding post diem interest to
sound in damages, it was not to be regarded as damages in the ordinarily
accepted sense, but as interest in fact, though damages in name, running
pari passu  with the interest stipulated for under the contract and in
like manner entitled to be treated as secured on the property. Let me then
examine this position. A man covenants to pa.y a sum of money certain,
with an amount of interest certain, upon a date certain, and mortgages his
land for the stipulated period as security for such principal and interest
and declares it liable to sale in enforcement of the mortgage immediately
on default at the expiration of the given period. Now I suppose the
reasonable presumption is, first, that a man will perform his contract and
not break it, and secondly, that if parties place a limit of time upon the
engagement entered into between them, they do so with their eyes open
and intend what they put in black and white into their contract. If, then,
A says to B, "I will pay you Rs. 1,000 on the 1st January 1890, with
interest at 12 per cent, per annum, meanwhile mortgaging to you my 4-anna
(1) 1 Wm. 8aund 201 (). (2) 10 A. 85. (3) 11 A. 416.
(4) 10 A.W.N. (1890) 149. (5) 8 A. 486. (6) L.K. 7 H.L. 27,
13 All. 335
INDIAN DECISIONS, NEW SERIES
1891 zemindari sbare.and, if I fail to pay on due date, you may realize the amount
MARCH 11. by sale of such share," the presumption is that A intends to pay and B in-
tends that he shall pay the Ks. 1,000 on the 1st January 1890, and that what
A^PEL- is in contemplation between them is a fulfilment of the covenant as to pay-
LATE ment on the date specified, and, if it is not fulfilled, an enforcement of the
ClVlL condition of sale. It is open to both of them to make provision for the case
- ' of default over and above what I have already mentioned by a covenant as
13 A. 330= to "post diem" interest, and if they do not do so, it must be presumed
11 A.W.N._ that the omission was intentional, and that the time to which the contract
(1891) 66. was limited was deliberately defined. What, then, is the special excellence
that belongs to a contract of mortgage for a stipulated term in preference
to any other contract to pay a sum of money certain on a particular date,
such as a promissory note for example ? In either case upon default of
payment on due date the right of action accrues, because the time for per-
formance has come and gone, and the contract has been broken. It seems
to me, if effect is to be given to the contention of the learned pleader for
the appellant, that no real distinction can be drawn between a mortgage
for a fixed period, with a covenant as to interest limited to that period, and
a mortgage with no such limitation but charging the property until repay-
ment of  principal and interest, with the result that an express cove-
nant for " post diem" interest has practically no higher scope or operation
than an assessment by a Court of such interest under the name of damages,
because, if be is right, in either case the post diem interest becomes a
portion of the amount in respect of which the mortgagee may foreclose or
sell the mortgaged property, or goes to swell the mortgage-money, a
mortgagor must pay before he can redeem. In this view of the matter
a mortgagee can allow his claim to post diem interest in the shape of
damages to accumulate up to the last day of limitation, and, though the
amount of it has in the end to be assessed and need not necessarily be any
particular sum, it is when assessed to be regarded and treated as if
it had all along constituted a charge or been secured on the mortgaged
property. I would ask from what date such charge is to hold ; from that
of the mortgage, or from the breach, or from the end of each year for
which interest remains unpaid, or from the date of the decree ; and
what is to be the position of a mortgagee who has taken an in-
cumbrance subsequently to the date of breach, but prior to the bulk
of the post diem interest, ab damages, becoming assessable ? If the
interest post diem were recoverable as interest pure and simple, the
recovery of it would bo limited to three years from the date when it fell
due (Act XV of 1877, sch. II, No. 64), yel; if we push the argument for
the appellant to its logical conclusion, upon the view that 'post diem'
interest assessed as damages becomes part of the " money secured by the
mortgage," it is difficult to see from what point of time, for the purposes
of art. 147, the money secured by the mortgage oould be said to " become
due." It seems to me a contradiction in terms to hold that something
the mortgagor becomes liable to pay in consequence of his breach of
contract can either legally or equitably be regarded as payable according
to the terms and conditions of that contract. The learned pleader ,
relied more particularly ou the cases of Morgan v. Jones (1), Price v.
Great Western Raihoay Company (2), Gordillo v. Weguelin (3), and certain
passages to be found in Chapter XI,  Part 2, of Fisher on Mortgage.
I have carefully looked into and exmined all these authorities, and
(1) 22 L. J. Ex. 232.
(2) 16 L, J. Ex,, 87,
(3) L.R. 5Ch, D, 287,
YII] SRI NIWAS RAM PANDE V. U. NARAIN MISR J3 All. 337
I am unable to regard them as making it incumbent on me to hold 1891
that interest accruing on a mortgage after the date fixed in the deed MARCH 11,
forms a portion of the "mortgage-debt." In my opinion, on the con-
trary, it can only be recovered as damages for the detention of that APPEL-
debfc, which damages cannot be treated as " secured by the mortgage " LATE
or " charged on immoveable property," but as compensation for breach CIVIL
of the contract of mortgage. This is borne out by the note to Mounson '
v. Redshaw (1), which is mentioned by Lord Cairns in his judgment 13 A. 330
in Cook v. Fowler (2). " The usual covenant in a mortgagee-deed is to 11 l.W.N.
pay the interest and principal on a certain date, but there is no covenant (1891) 66.
after that date, therefore in debt on such a deed the interest subsequent to
the day of default in strictness should not be claimed as part of the debt but
as damages for the detention of the debt." The learned Pandit for the appel-
lant pressed upon us the remarks of Lord Justice Amphlett in Gordillo v.
Weguelin as indicating that the Court of Chancery would, in dealing with the
question of redemption on equitable grounds, hold the mortgagor bound to
pay post diem interest assessed as damages as a part of the amount pay-
able by him before he could redeem. However that may be, the action of
our Courts in such matters is guided and governed by the Transfer of
Property Act, and I cannot hold the expressions therein of "mortgage
money " (s. 67) or " principal and interest due on the mortgage " (s. 86 1 ) ag
covering and including interest ' post diem,' assessed as damages. It was
said that this view will involve considerable hardship to a mortgagee,
which I fail to see. Like every other party to a contract it is open to
him en breach to proceed at once for the default, and the presumption is
that be will do so, and not that he will lie by, for the purpose, as in this
country we know, of allowing interest indefinitely to accumulate till it
reaches an amount which, if given as damages assessed at the rate of in-
terest on the mortgage-deed, will be far beyond what the mortgagor can
pay. That this assessment need not necessarily adopt the contractual
rate where it is abnormally  high, cr where there has been delay, is
abundantly clear from the case of Cook v. Fowler (2), and it seems absurd
to me to talk of there being any hardship to a mortgagee for a fixed term
in putting him on the same footing in the matter of damages for breach of
contract as any other party to a contract whose right to sue arises on
such contract being broken. Moreover, it is open to a mortgagee at
the time of the making of the contract of mortgage to have a covenant
entered therein making provisions for ' post diem ' interest, and this
is more frequently than not to be found in such contracts; if he does not.
do so he has no one but himself to blame.
I entirely concur in what was said by the learned Chief Justice in
Mansab Ali v. Gulab Charid (3) and Bhagivant Singh v. Daryao Singk (4),
and I dismiss this appeal with costs.
(1) Wm. Saund. 201 'nj. (-2) L. R. 7 H. L. 27. (3) 10 A. 85.
(4) 11 A. 416.
13 All. 338 INDIAN DECISIONS, NEW SERIES [Vol.
1891 13 A, 337 = 11 A, W.N. (1891)93.
MARCH 17. APPELLATE CRIMINAL.
APPEL* Before, Mr. Justice Tyrrell.
CRIMINAL. QUEEN-EMPRESS v. MUHAMMAD MAHMUD KHAN.*
[17th March, 1891.]
13 A. 337 =>
Vi AWN Sessions Court Assissors Assessors prevented by death or illness from attending a trial
1 ' * Criminal Procedure Code, ss. 268 and 285.
During the course of a trial before a Sessions Court with three assessors, one
assessor died. at an early stage of the proceedings, L-itor on, another assessor
became too ill to take any further part in the trial, and the third assessor was
obliged to retire at the begining of the accused's pleader's address to the Court
and did not return until it was finished.
Held, that the law contemplated the continuous attendance of at least one asses-
sor throughout the trial. This condition not having been fulfilled, tha proceed-
ings before the Sessions Court must be set aside as having (with regard to the
provisions of s. 268 of the Code of Criminal Procedure) been held before a Court,
not having jurisdiction.
[R., 24 M. 523 (536) = 2 Weir 345.]
THE facts of this case . so far as they are necessary for the purposes
of this report, are stated in the judgment of Tyrrell, J.
Mr. Pogose for the appellant.