was made to the plaintiff of Rs. 100 per annum from 1244 to 1247, and of Rs. 50 per annum afterwards, on the recognition by the Court of the right of Bhageerut and others to a 3-hiswah 15-biswansee share. These defendants are at a loss to comprehend why the plaintiffs should institute the action.

The Principal Sudder Ameen observed that no dispute exists as to the fact of successive possession by the two first classes of defendants. It is shown that the Judge ordered possession by the decreeholders on 30th May 1827, and shortly after, that is, on 19th June 1827, directed that the plaintiffs before re-admission make good interest on their debt as well as the principal thereof. The plaintiffs allege indeed that they knew nothing of this second roobakaree, but it is conclusive as to interest nevertheless, and the charge is strictly equitable. Is then the transaction to be regarded as a mortgage? If so, all that remains is to adjust the accounts. The Principal Sudder Ameen held that the property was pledged just as property is pledged for the amount of a bond, and the Judge having, according to the practice which prevailed in those days, placed the defendants in possession, the case must be dealt with precisely as one of mortgage. The correctness of the nikasees is not disputed; these give an amount of receipts, from 1827 to the present time, of Rs. 36,687-9-3, of which Rs. 24,000 have been paid as Government revenue, and Rs. 2,003-13-9 have been set apart to defray village expences. The lower Court refused to credit the defendants with the amount they professed to have paid by way of allowance to the plaintiffs, or to give them any thing for huq tehseel, and having adjusted the accounts on the principle of calculation, which is applicable to cases of mortgage, decided that Rs. 4,260-12-9, were still due as interest only, exclusive of principal. The suit was therefore dismissed.

It is contended by the appellant that the rules which bear on mortgage cases cannot be made to extend to the case of property made over to a creditor for the more effectual recovery of a debt. The Judge made over the village in 1827, without the consent of the appellants, and ordered that the amount of the two decrees should be made good from the profits, after deduction of malgoozaree payments and village expences, and it was further ordered that copies of the order be given to both parties, that all disputes be finally set at rest. This then was no mortgage, for it is not competent to a Judge to mortgage a man's estate without the owner's consent; in mortgage cases a transfer takes place in the Collector's books, and no transfer took place here. The roobakarees drawn up on the occasion of placing Sookram and Heera Singh in possession do not speak of any mortgage. In the execution of a decree, such a thing has never been heard of as the

deduction, every year, of the interest in the first place, the balance, if any, being carried to credit of the principal, and if to a case like the present, the rules which govern mortgages are applied, the satisfaction of a decree will be a matter of exceeding difficulty. The appellants urged on the 21st March 1836, that the decrees had been satisfied, and they objected to the possession by Mân Singh, and on 4th September 1841, the case of the execution of the decree of Sookram and Heera Singh was struck off; if this be really a mortgage, how were orders such as the above passed in the miscellaneous department? If the Settlement proceeding of 18th January 1838 be referred to, it will be evident that the decreeholders were not in possession as mortgagees, and that the Settlement Officer protested against the notion that the transaction was a mortgage transaction. The judgment of the Principal Sudder Ameen is not consistent with itself: at first he did not regard the case as one of mortgage, and afterwards he passed an order at variance with his preliminary roobakaree fixing the issues under Section 10, Regulation XXVI. of 1814, and, on 14th August 1850, he desired the defendants to put in the usual accounts and to swear to the truth of them. The roobakarce of the 19th June is opposed to that of 30th May. In the first there is no provision made for the payment of interest, it is not even alluded to, and must assuredly, if any new order were to be passed, the other side should have been summoned; in their absence, in the absence of even a notice to them to attend, the order of the 19th June cannot be a valid order. The present award of interest is made in the very face of the original decrees, which disallowed interest. Even if the roobakaree of 19th June be regarded as valid, (and the appellants contend that it cannot be so regarded) still the interest cannot be awarded on the principle followed by the Principal Sudder Ameen, that is, on the principle of deducting every year the interest from the main debt, and of carrying the balances, if any, to the liquidation of the main debt; for what does that roobakaree of 19th June empower? Simply this, interest is to be charged to the zemindars, the proceeds of the estate having been first carried to account in payment of principal. The Judge made over the property to help the satisfaction of the decrees, but not to ruin the appellants. If the interpretation put on the Judge's roobakaree by the Principal Sudder Ameen be a right one, the release of the village, the then nikasees and jumma being taken into consideration, was an utterly hopeless matter: The appellants urge, in conclusion, that they have been wrongly charged with the costs of the fees of three vakeels, whereas the costs of the fees of only one vakeel should have been charged.

*

Motee Lall and Jowahir Singh put in a reply to the appeal. They contend that the order complained of was made at the ex

press desire of the appellants, that it was issued twenty-two years ago, and never called in question. To give a property to another as security for a debt and to mortgage it, are one and the same thing, and it is a mere dispute about words to call the transaction in this instance any thing else than a mortgage. The ap. pellants cannot point to any similar case in which a judgment, different from that now come to, has been passed. The respondents submit that Construction 868 may be acted upon with propriety, and that ten per cent. on account of huq tehseel, which the lower Court has disallowed, ought to be awarded to them. The appellants could not have been ignorant of the order of 19th June 1827, seeing that no public officer ever does what affects the interest of any without making an intimation to him. The order of 19th June is not opposed to that of the 30th May, if indeed the former order had ruled that no interest should be charged, and the latter had ruled that interest should be charged, there would have been an obvious contradiction; not so at all, when that which is omitted in an earlier order is supplied by a later. The appellants have not drawn the due distinction between an order, which is contrary to another, and an order which is merely not conformable to another. Be the order, however, good or bad, it cannot be interfered with after the lapse of more than twelve years. The Judge acted on the principle of the Circular Order of 11th January 1839, which has been declared by precedents of this Court to have a retrospective operation. The Judge acted for the benefit of the appellants; he took care of their property for them, and they ought to feel grateful for his

care.

The Court are of opinion that the rules which govern cases of formal mortgage cannot with propriety be referred to in disposing of the case before them, the incidents of which are altogether peculiar. It is not as if the appellants had voluntarily taken up a sum of money from the respondents, pledging their property for the payment, and placing their creditors in possession, with a stipulation, as is frequent in cases of mortgage, that profits should be taken in lieu of interest; and yet the lower Court has dealt with the case as if the subject presented itself in this very ordinary shape. On the present occasion, the original decreeholders did not seek to avail themselves of that process of the law against the property of their debtors, which immediately suggested itself; they applied to be put in possession of their estate with a view to the recovery, from the proceeds of it, of the amount of the decrees: to this they were no doubt moved much less by any considerations of lenity towards their debtors, than by considerations of what was advantageous for themselves, and the Judge, it may be presumed, was influenced by desire to get rid of the case by effecting

a settlement of the claims in an equitable manner. According. ly, on the 30th May 1827, he acceded to the application of Sook. ram and Heera Singh, and placed them in possession, to be yielded up to the proprietors whenever the amount of the decrees should be made good from the proceeds of the estate. It is evident to the Court, whatever may be said to the contrary by the appellants, that this arrangement had their full concurrence, that it was readily accepted by them as a beneficial measure; it is equally clear from the spirit of the order passed, and indeed from its letter, that no charge of interest was contemplated by either party, or by the Judge, and that the latter regarded the adjustment as final, subject only to the payment of the gross debt from the profits. He expressly ordered that copies of his proceeding be given to both parties to prevent any further dispute and that the papers of the case be " dakhil duftur;" a proceeding such as this bears no affinity to a mortgage. It is quite true that, on the 19th June following, the Judge, at the instance of the decreeholders, re-addressed himself to the subject, and ordered that interest be charged in addition to the principal; but when the Court look to the entire failure of the Judge to satisfy himself that on this occasion his order was founded in justice, to his failure to refer to the original decrees, so as to assure himself that he did not contravene any stipulations therein, to invite any objections which might fairly be urged by those against whom his order was directed, to his failure, in short, to assign any better reason for making his order than that it was made, because it was asked for, they are unable to recognize the validity of this second roobakaree. It is therefore left to the Court to guide their decision by principles of equity with reference, generally, to the rules which govern the execution of decrees for the payment of money. In neither of the original decrees is future interest provided for; but the Courts are empowered* " to *Circular Order, 5th May exercise a sound and equitable discre1837, Para. 3. tion" in awarding interest and in deter mining the rate at which it shall be awarded, not of course exceeding 12 per cent. per annum, in cases in which "no specific stipulation may exist." The Court believe that they shall act up to the intent of the above Circular Order, and shall deal out substantial justice between the parties, if they adjudge the appellants to be restored to possession of their share in the mouzah on payment of simple interest at the rate of 6 per cent. per annum, on the amount of the original decrees. They pass a decree to that effect, disallowing the claim of the defendants to huq tehseel, as well as their claim to any deduction on account of malikana to the plaintiffs, of the payment of which, though certain papers are filed with the record, which purport to be

receipts for malikana by the plaintiffs, no legal proof whatever has been adduced, the authenticity of these receipts not having been established by oral testimony. The nikasee papers show that, on the principle of calculation above laid down, the plaintiffs are in a situation to claim possession with wasilat from date of institution of suit to date of recovery of possession, and, further, to demand payment in money of Rs. 2,222-11-3, on account of surplus profits drawn by the heirs of Mân Singh, by whom the above amount is hereby declared payable, with interest at the usual rate, till final realization of the decree. Order is made accordingly in reversal of the judgment of the Principal Sudder Ameen.

The 22nd September, 1851.

Present:

CASE NO. 163 or 1851..

S. S. BROWN, Offg. Judge.

Special appeal from the decision of J. P. Gubbins, Esq., Judge of Dehlie, dated 22nd April 1851.

BULDEO SAHOY, (Plaintiff), Appellant,

versus

MUSSUMAT KURREEMUN AND OTHERS, (Defendants), Respondents.

THE volume of the printed decisions for April 1851 supplies the history of this case.

A special appeal was admitted to try, whether the Judge has or has not confined his decision to the points at issue between the parties.

The Court find that the Judge has decided this suit on grounds of expediency rather than of right. He has merged the functions of the Judge in those of the arbitrator. The simple question was, whether the newly opened window "looking right into the door of the plaintiff's upper rooms" constituted a nuisance, and whether, consequently, the plaintiff could claim its removal by an order of the Civil Court. On the decision of this point in the plaintiff's favor or otherwise, according to the evidence adduced, must it depend whether the window be closed up, or suffered to remain as it is. To order "that it be moved a little to the right side" is to come to a decision foreign to the issue tendered.

The Court reverse the decision of the Judge, and remand the suit to him that he retry it with reference to these remarks.