Rowland, J.:— This is an appeal from the decision of the Subordinate Judge of Shahabad directing the preparation of a final decree in a mortgage suit. The mortgage bond is dated 16th December 1905 and was for repayment of a principal sum of Rs. 600 with interest thereon at two per cent, per month with half yearly rests. It was secured on two revenue paying properties and one house. A payment of Rs. 75 on account of interest was made on 26th December 1906 and thereafter nothing further having been paid, the mortgagee brought the suit on 28th November 1916. Attachment before judgment was effected on 9th December 1916 as against a sum of Rs. 1859-14-6 lying in the Court at Sasaram as a deposit to the credit of defendant 1, the Subordinate Judge, Mr. Jadunandan Prasad, passed a preliminary decree for sale on 31st May 1918 which was followed by a final decree on 7th February 1920. The decree-holder withdrew on 2nd July 1920 the sum of Rs. 1859-14-6 which had been attached before judgment. Thereafter one of the mortgaged properties namely the house was sold on 8th December 1920 and the decree-holder was the purchaser himself at a price of Rs. 204-8-3. Subsequently he sold it on 21st November 1922 for a sum of Rs. 500 to one Hakim Abdul Hamid. Thereafter one of the defendants, Jagarnath Singh, defendant 32 against whom the decree had been made ex parte applied under O. 9, R. 13 alleging that the summons had not been served upon him. On his application the entire decree was set aside on 17th December 1923 and the suit restored for hearing. It was heard and the whole suit was dismissed on 19th December 1924 by Mr. Abdus Shakur, Subordinate Judge.

2. From this dismissal an appeal was preferred to this Court and was No. 51 of 1925. The appeal was decreed and preliminary decree was passed on 17th May 1928. Pending the hearing of the appeal, however, three of the defendants had died, that is to say, on 14th February 1926, Mangroo Ray, defendant 19; on 1st February 1927, Narain Prasad, defendant 6 and in October 1927, Ram Nath Singh, defendant 26. The death of these defendants was not reported to the Court and no substitution of their heirs was made. After the passing of the High Court's decree, that is to say, on 3rd July 1928, the death occurred of another defendant, namely Kalika Prasad, defendant 3. One more transaction may be mentioned and that is a transfer by the decree-holder on 14th February 1926 of her entire rights to her daughter Champamani Bibi and son-in-law, Bhan Kumar. The application for a final decree was made on 18th March 1930 before the Subordinate Judge in the names of the original plaintiff decree holder and the two transferees. The objections which have been taken in the main, arise out of alleged defect of parties. There are however other objections affecting the amount as due to be entered in the final decree. Before the Subordinate Judge it had been contended that the applicants for a final decree were not entitled to maintain the suit. The Subordinate Judge has dealt with this contention which seems to have no foundation in anything that I can find in the Code of Civil Procedure. The rule is that in the event of transfer or assignment of an interest by a plaintiff or decree-holder, the assignee has the right to apply to the Court to be added or substituted as a plaintiff. If this is not done, the suit will proceed at the instance of the original plaintiff and any decision arrived at whether favourable or unfavourable will be effective for or against the interest of the assignee. That is on all fours with the rules about transfer pendente lite as affecting the interest of defendant in property in suit; but as against the plaintiffs, it is not for the defendant to raise any objection when the interest of the mortgagee in the litigation was throughout fully represented. In April 1932 Lalmani Bibi, the mother of Champamani Bibi died and Champamanii Bibi was substituted for her as her heir. The interest of the mortgagee was therefore completely represented throughout. We were pressed much more seriously by Mr. Yusuf in respect of the second objection which refers to the death of defendants 6, 19 and 26 during the pendency of the appeal in this Court. No steps were taken to substitute their heirs and it necessarily follows that the appeal against them in this Court had abated by operation of law before the date on which the appeal was heard and decided. Therefore so far as these defendants are concerned, no decree could be passed against them and any decree that has been passed cannot affect their interest or the interest of their legal representatives.

3. Now it is argued that as the result of the death of these defendants the entire appeal abated and no decree in the suit could be passed at all because it is said a mortgage is one and indivisible and in order to obtain a mortgage decree there must be present on the record not only all the persons interested in the mortgage but all the persons having an interest in the equity of redemption. If one or more of these are missing, it is said, the suit is not properly constituted and no decree can be passed at all. The Subordinate Judge in dealing with this, had held that though no final decree could, be passed as against defendants 6, 19 and 26 or could affect their interest, nevertheless this would not prevent a final decree, being passed in the suit with the reservation that it would affect only the interests of defendants other than those mentioned. This is in accordance with the decision of this High Court in 10 Pat 3411 where the principle laid down in previous decisions was accepted that whereas he general rule is that all persons having the equity of redemption ought to be brought on the record, the failure to bring any one of them on the record does not necessitate the dismissal of the suit if the Court in his absence can deal with the matters in controversy so far as regards the rights and interests of the parties actually before it. The argument was on similar lines with regard to Kalika Prasad defendant 3 who died on 3rd July 1928 after the disposal of the appeal in this Court. What happened in his case was that no steps were taken until the decree-holder moved the Subordinate Judge on 18th March 1930 to prepare a final decree. At that stage the death of this defendant was reported and a prayer was made to substitute his heirs and to continue the proceedings against them in his place. The Subordinate Judge held that the proceedings for a final decree being proceedings in the suit, the suit must be held to be still pending and to have abated as against this defendant; that it was too late to have the abatement set aside and accordingly the substitution was refused and proceedings continued as against the other defendants on the record. We have not here to consider the correctness of the Subordinate Judge's view of the law as no cross appeal has been presented against the decision so far as the substitution matter is concerned. Assuming the procedure followed by the Subordinate Judge to be correct, the position in respect of defendant 3 is now analogous to the position in respect of defendants 6, 19 and 26 above referred to. It was next argued that assuming that the suit could proceed to a final decree against those defendants who remained on the record and were represented, nevertheless the Court could only pass a decree for something less than the amount due on the mortgage and reduced proportionately to the share in the mortgaged property of those defendants who were no longer on the record. It was also pointed out that there are at present no materials on which the Court can determine what is the share of those defendants in the mortgage security and what proportion it bears to the whole of the mortgage security. Therefore the argument was that the Court being unable to ascertain for what limited amount it will be able to pass a decree should pass no decree at all but should dismiss the entire suit. For the respondents, it was argued that the mortgage being indivisible, every part of the mortgaged property is liable for the whole of the mortgage debt. This is a well-established principle; but an exception is introduced by Section 60 of the Transfer of Property Act, which recognizes the right of a person entitled to a share only of the mortgaged property to redeem his own share only on payment of a proportionate part of the amount remaining due on the mortgage if the mortgagee or mortgagees has or have acquired the share of a mortgagor. The appellant claims that the benefit of this exception will accrue to the remaining mortgagors and persons interested in the mortgage security not only on acquisition by the mortgagee of a part of the mortgage security but on the release whether by act of the creditor or in any other way of a portion of the mortgage security. The exception was extended in circumstances of this nature in a number of decided cases in the Calcutta High Court; but the High Courts in India were by no means unanimous as to the effect of S. 60 as it stood before the amendment made in 1929. In Allahabad, Madras and Bombay different views prevailed. I may refer for instance to the Full Bench decision of the Madras High Court in 40 Mad 968.2

4. It was apparently to settle the conflict between these different views that the amendment of the Section was made in 1929, the word ‘only’ being inserted after ‘except’. As I understand it the intention of the Legislature in making this amendment was not to alter but to declare the law. It is perhaps significant that Section 63 of the Amending Act names certain Sections in respect of which the amendments made in 1929 are not to have retrospective effect; but the Section by which the amendment was made in S. 60 of the original Act is not one of those Sections. This fact is in favour of the view that the amendment of this Section was intended to declare what the law was and was to be regarded as having always been. If I am right in this view then notwithstanding that any decree passed in this suit will be ineffective against defendants 3, 6, 19 and 26 and their representatives the amount of the mortgage debt to be entered in the decree as payable for the redemption of the mortgaged properties will not be affected by the absence of those defendants from the record. It is suggested that the decision above cited, 10 Pat 341, follows the Calcutta decisions in the view that the mortgage debt is to be proportionately reduced; but in that case that question was not directly in controversy. Had it been so and had we been disposed to take a different view it might have been necessary to refer the question to a larger Bench; but I find that yet another defendant died during the pendency of these proceedings and the consequences of his death were considered by Das and Allanson JJ. in the course of their judgment dated 17th May 1928. That decision is inter partes and must operate as res judicata for the purpose of this litigation both on matters of fact there decided and on the view of law there taken, Das J. accepted the view in 43 Bom 5753 and held that there was no question of abatement of the entire suit and also proceeded to pass decree for the entire mortgage debt without any reduction in consequence of the absence of one of the defendants. We must therefore follow that precedent and this objection to the decree must fail.

5. The next point was with regard to the allowance to which the defendants are entitled in respect of realizations made since the institution of the mortgage suit. There are two items to be considered. One is the sale of the house on 8th December 1920. This was put up to auction on foot of the mortgage decree which had been passed by the Subordinate Judge on 31st May 1918 preliminary and 7th February 1920 final decree. The defendants in the present proceeding contended that an allowance should be made of the full value of the house and they led some evidence as to its cost of construction according to which it should have been valued at Rs. 3597. The witness who was called to prove the estimate of the cost of construction did not impress the Subordinate Judge favourably. Moreover, if we were to assume that the house had cost so much to construct, it would still remain a matter of uncertainty how much allowance ought to be made for depreciation before arriving at its value. On the other hand it appears in evidence that the house was within two years from its purchase by the plaintiff sold for Rupees 500. That amount may safely be taken as the Value of the house. The respondents before us did not resist the claim of the defendant that allowance should be made for the value of the house by entering satisfaction of the claim as Rs. 500 instead of Rs. 204-8-6; and the allowance will be made accordingly. In this connexion the appellants revived the argument that the mortgagee by his purchase of this house acquired a part of the mortgaged property thereby giving the defendants a right to proportional reduction of the mortgage debt to be decreed. But the purchase of the house was not by private contract or in execution of a third party's money decree in which case such a contention must succeed. It was a purchase on the plaintiff's own decree in respect of this very debt. Therefore it can have effect only as a part satisfaction of the claim and to the extent that I have indicated.

6. The other item is a sum of Rs. 1859-14-6 which was in deposit, was attached before judgment on 9th December 1916 and was paid out to the decree-holder on 2nd July 1920. The Subordinate Judge has allowed credit for this as payment made towards the mortgage debt on 2nd July 1920 the day when it was drawn out. The appellant contends that credit should be given so as to stop interest running to this extent with effect from the date on which attachment before judgment was effected so that the money was not available for the purposes of the debtor. We cannot regard this sum as one which ought to be deemed to have been paid to the plaintiff in 1916 when it was not at that time in his power to receive the money; nor can we regard it as having been taken beyond the reach of the debtor at that date, because it was open to him to give sufficient security to the Court to obtain permission himself to draw the money. But the money was available for payment to the decree-holder at any time after the passing of the final decree on 7th February 1920. If he waited longer that was entirely at his choice. We think therefore that credit should be allowed for this amount as for a payment made on 7th February 1920 instead of 2nd July 1920. With these modifications the calculation of the amount for which the property is to be sold appears to us to be correct.

7. We have now to deal with one more contention of the appellants that calculation of the amount is to be made on an entirely different basis in consequence of the passing of Bihar Act 3 of 1938, the Bihar Money Lenders Act and Bihar Act 5, the Bihar Money Lenders (Amendment and Application to Pending Suits and Proceedings) Act, 1938. Reference is made to S. 11 of the Act in which it is enacted that notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any contract, no Court shall …… pass a decree for an amount of interest for the period preceding the institution of the suit which, together with any amount already realized as interest through Court or otherwise, is greater than the amount of the loan advanced, or if the loan is based on a document, the amount of loan mentioned in the document on which the suit is based. It is said that this Section precludes the Court from passing a decree for more than Rs. 600 by way of interest. (The Amending Act declared that this and the three following Sections would apply to appeals as well as suits and to litigations instituted before as well as after the commencement of the Act.) An objection is taken for the respondents that Sec. 11 does not mean this and that if it does, it is repugnant to the provisions of certain enactments of the Indian Legislature and is to the extent of that repugnancy void.

8. To appreciate these contentions I must refer to the Government of India Act, 1935, Ss. 100 and 107 and Sch. 7. In Schedule 7 there are three lists. The first is called the Federal List and with regard to the subjects of that List it is not competent to the Provincial Legislature to pass any laws. There is also a Provincial Legislative List of matters with respect to which the Provincial Legislature has and the Central Legislature has not power to make laws for a province. There is thirdly a concurrent Legislative List of matters with respect to which a Federal Legislature and also a Provincial Legislature has power to make laws. Money-lenders and money-lending are referred to in Item 27 of the Provincial List in Sch. 7; but Code of Civil Procedure, Item 4, Contracts Item 10, jurisdiction and powers of all Courts with respect to any of the matters in this List Item 15, are in the concurrent Legislative List. Now the scheme of the Act appears to be that when a Provincial Legislature makes laws regarding any matter in the Provincial Legislative List, those laws will prevail notwithstanding that they may be repugnant to a previous All India Act. For instance, the Usury Laws Repeal Act, India Act 28 of 1855, states in the clearest terms that the amount of interest shall be adjudged or decreed at the rate agreed on by the parties. But the Bihar Money Lenders Act in the Section I have quoted imposes a limit on the interest that may be decreed, notwithstanding anything to the contrary in the contract or in any other law. The apparent repugnancy is not necessarily fatal to the validity of the Provincial Act if the subject is one on the Provincial Legislative List; and “money-lenders and money-lending” is on that List. Prima facie, therefore, the Bihar Money Lenders Act must prevail within the Province, subject to what I have next to say.

9. Section 107(1) of the Government of India Act, enacts that when a Provincial Legislature passes a law regarding a matter on the concurrent Legislative List then if it is repugnant to an Act of the Indian Legislature dealing with the matter, then the existing India law is to prevail and the provincial law shall to the extent of the repugnancy be void unless the procedure indicated in the succeeding sub-sections has been followed. That procedure is to reserve the provincial law for the consideration of the Governor-General or for the signification of His Majesty's pleasure. When that has been done and the law has received the assent of the Governor-General or of His Majesty, then the provincial law shall in that province prevail. Now it has been argued before us that the expression in Sec. 11 “no Court shall pass a decree” is intended to control the powers of the Courts not only with respect to preliminary but also with respect to final decrees and that notwithstanding that a preliminary decree may have been passed, it is not open to the Court to pass a final decree or on appeal to affirm a final decree which would award interest beyond the limits laid down in S. 11. I feel some difficulty in reading S. 11 in this very wide sense. It seems more reasonable to assume that it refers to the passing of a fresh decree and not merely to the carrying out of a decree already passed. If we were to read the Section in the wide sense contended for, it would seem repugnant to Section 97 of the CPC, as well as to several of the Rules in O. 34 of the Code. It is a recognized principle that where one construction of an enactment will be in accordance with the existing enactments and another construction will be repugnant to them, the Courts will, where possible, adopt that reading which avoids repugnancy. On that principle I think S. 11 should be construed in the narrower sense as not intended to affect a decree already passed and therefore it seems that we cannot go behind the preliminary decree that was passed in this Court in 1928 and the requirement of the Code that a final decree should be prepared in accordance with it. It may be observed in this connexion that this is not a money suit to recover debt from a debtor but a mortgage suit and the decree that is to be passed is not a decree requiring judgment-debtors to pay any certain amount but a decree for sale of the property unless the persons interested in the property make sufficient payment to redeem it. On this view the defendants can get no advantage from the Bihar Money-Lenders Act, 1938. It is unnecessary to decide whether if this had been a money suit there would have been repugnancy between Section 11 of the Bihar Money-lenders Act and the Code of Civil Procedure or any other India Act against which S. 11 would not prevail.

10. In the course of the hearing, it was argued before us that the present respondents were the subject of a personal disqualification from realizing the entire decretal amount. Reliance in this connection was placed on Section 26 of the Stamp Act, but I find nothing in that Act to assist the appellants. The Section only applies where the amount or value of the subject-matter of any instrument chargeable with ad valorem duty cannot be ascertained at the date of its execution. Now the argument was that in the deed of gift by which Lalmani Bibi assigned her interest to the other plaintiffs this bond in suit was mentioned and its value was estimated at Rs. 10,000 and the argument is that this precludes the plaintiff as assignee from claiming more than Rupees 10,000. This is not a case in which S. 26 applies at all. The parties to an assignment of a debt are also under no compulsion to value it at the entire amount due. It may well be that in consequence of a risk of non-realization the value of a debt is considerably less than its face value. There is nothing in the Stamp Act to limit the right of the parties to value a chose in action at any amount they may think fit or to penalise them for doing so. I should add, that appellants' advocate could not tell us what was the value of the stamp on the deed of gift or show us that a stamp of higher value would have been needed had a higher valuation been placed on this debt.

11. Another objection is taken that no decree can be passed against the property of the appellants because those properties are not mentioned in the preliminary decree. This matter has a history. The mortgage security entered in the mortgage bond was a three annas share of the entire mahal Amawan asli mai dakhli, tauzi 2075, sadr jama Rs. 1113-6-6. In the plaint a number of villages are mentioned with specifications of the khewats as being portions of the mortgaged property. The preliminary decree as at first framed in the High Court contained a list of villages in accordance with the list in the plaint, but on an application by the defendants a direction was given that the description of the mortgaged properties in the decree should be amended to correspond with the description in the bond. This was done. The appellants contend that the effect of this was to exempt from sale the properties in the list which has been struck out of the decree. That is not so. The effect is that nothing has been decided as to what villages and shares out of those in the list in the plaint are comprised within the mortgage security of which a general description was given in the bond and repeated in the preliminary decree. That question can obviously not be decided in this appeal. It must remain to be determined by the executing Court. In the result, all the objections taken by the appellants fail except with regard to the valuation of the house and the date from which credit will be allowed in respect of the sum of Rs. 1859-14-6. Let a decree be prepared in accordance with the directions given above. It is to be noted that the decree is not executable against the mortgaged properties in the hands of defendants 3, 6, 19 and 26. If on any part of the mortgaged property being put up to sale it is claimed before the Subordinate Judge to be the property of one of those defendants, the Subordinate Judge will hear and decide the matter. The respondents are entitled to their costs of this appeal to be realised from the mortgaged property.

Manohar Lall, J.:— I agree.

D.S/R.K

12. Order accordingly.