Chaudhuri, J.:— This matter arises upon a contention raised on behalf of the Plaintiff that the rule of Damdupat does not apply to mortgages under the Transfer of Property Act. There was a reference for accounts upon a mortgage decree in this suit in the usual course. Accounts have been taken and the official Referee has made his report disallowing interest exceeding the amount of principal applying the rule of Damdupat. It was contended before me on the strength of Madhwa Sidhanta Onahini Nidhi v. Venkataramanjulu Naidu, that the rule of Damdupat does not apply. The question has not so far come up for decision in this Court. In the matter of Harilal Mullik(2) the point was raised but not decided. It was held in that case that an order admitting a creditor's claim was tantamount to a decree, and as such put an end to the contractual relationship between the parties. The very same principle has been acted upon in the case of Nanda Lal Boy v. Dhirendra Nath Chuckerbutty(3). In the case of Jeewanbai v. Manordas Lach-mondas, the learned Judge hold that the rule of Damdupat was applicable. I find, however, in that case the case in Madhwa Sidhanta Onahini Nidhi v. Venkataramanjulu Naidu was not cited. The current of decisions in the Bombay Court has been that the rule of Damdupat does apply. See the case of Sundarbai v. Jayawant Bhikaji(5). In this Court the uniform rule so far as I know has been to disallow interest larger than the amount of principal in making up a mortgage account. As a Court of first instance I am not prepared to follow, under the circumstances, the case in Madhwa Sidhanta Onahini Nidhi v. Venkataramanjulu Naidu. It seems to me that in that case the learned Judges have overlooked the provision of sec. 4 of the Transfer of Property Act, taken with sec. 37 of the Contract Act. It is conceded in the Madras case that in the Contract Act provision has been made for the application of the rule of Damdupat. Sec. 4 of the Transfer of Property Act provides that the chapters and sections of that Act which relate to contracts shall be taken as part of the Contract Act. I therefore confirm the report made by the Referee in this instance and disallow the contention raised.
Solicitors: Messrs B.N Basu & Co. for the Plaintiff.
Solicitor: Babu P.N Sen for the Defendant.