Hobhouse, J.

1. This is an appeal from an order made in execution proceedings. The plaintiff, now appellant, is a mortgagee; and the respondent represents the mortgagor who was defendant and is dead. The mortgage was made on December 11, 1882,to secure three lacs of rupees. The mortgagor failed to pay, and the mortgagee filed a plaint which is not in the record, but which from the Subordinate Judges recital in his judgment appears to have been of an ordinary nature, praying for payment of principal and interest on a day to be fixed by the Court, and for sale in default of payment. The frame of the suit, however, so far as it explains the decree, is most properly taken from the decree itself, on the construction of which the whole case turns.

2. The decree bears date January 7, 1886. It will make the discussions on it clearer if the material expressions in it are arranged under separate heads.



(a) The plaintiff seeks the following reliefs: That the principal and interest due up to this time, together with such further interest as may accrue due from the date of the filing of the plaint up to the date of payment, and also the costs of this suit with interest thereon up to the date which may be fixed by the Court may be ordered to be paid;

(b) It is ordered and decreed that the plaintiffs entire claim be decreed:

(c) with interest pendente lite on the principal at the rate claimed and costs of the suit;

(d) The plaintiff will get future interest at 8 annas percent, on the amount of decree and costs;

(e) Defendant to pay within six months the sum of Rs. 3,00,000 on account of principal";



Then follow directions for payment within the six months of specified sums of money under different heads: I. Interest included in the claim, i.e., up to date of suit; II. Interest pendente lite at the rate of 9 per cent; III. Future interest to 20th January, 1886, at 6 per cent.; IV. Future interest to 20th July, 1886, at 6 per cent.; V. Costs of suit.

(f) In the event of default in payment of the entire decretal amount, the hypothecated property be sold by auction in satisfaction of the decretal amount by enforcement of the lien, and in the event of any portion of the decretal amount remaining unpaid, the balance of the decretal amount be recovered from the other property of the debtor deceased.

3. The plaintiff has made applications for execution from time to time under which he has realized large sums. The last application was made on April 14, 1896, and on that occasion the defendant for the first time raised the objection that according to the decree no interest is payable subsequently to the day fixed for payment of the specified sums-namely, July 20, 1886.

4. On September 25, 1897, the Subordinate Judge, who was not the judge who made the decree of 1886, allowed the objection. His reason is given thus:



It is an admitted fact that the plaintiff claims to recover interest even after the 20th of July, 1886, which was the date fixed by the Court for the payment of the mortgage money under Section 88 of Act IV. of 1882. I have read the judgment and the decree of the original suit, and they are as clear and specific in awarding interest to the plaintiff up to the 20th of July, 1886, as could be desired. Neither of these documents admits of any doubt, and I hold that according to those documents the decree-holder is entitled to interest up to the 20th of July, 1886, but not after that.

5. The learned judge does not further examine the language of the decree, but his decision that it excludes interest after July 20, 1886, can only be supported by holding that the enumeration of sums specified under head (e) to be paid on that day in order to avoid a sale under head (f) has the effect of cutting down the general terms of heads (a), (b), (c), (d), which if not so cut down would give interest to the day of payment.

6. On appeal, the High Court affirmed the decision of the Subordinate Judge. The learned judges take a different line of reasoning. They do not find the decree so clear against the plaintiff as it appeared to the Subordinate Judge. Their difficulties, and with them the precise ground of their decision will be best stated in their own words:



Thus we have before us a decree upon which the decree-holder places one interpretation and the judgment debtor another and a totally different interpretation. Bach claims that the interpretation for which he or she contends is authorized by the operative words of the decree. We have tried to see if those words are capable of being so read as to leave no room for doubt in the mind of the Court executing it, what the intention of the Court was which passed the decree. The words by themselves are not a sufficient guide. In one part they seem to point to an intention of the Court to grant all that the decree-holder asked for in his plaint. In another part details are given which cover each portion of the relief asked for with the exception of interest to date of payment, and thus the two parts are at conflict. The decree-holder urges that at the time of passing the decree the Court could not have possibly entered any detailed sum as representing what might eventually be due under this head. True, but we should expect that a Court which went into such details as the Court passing the decree did, would not if it had intended to grant interest subsequent to the date (July 20, 1886) have omitted to say, together with future interest at 6 per cent, to date of payment, or words to similar effect. In the face of this conflict we are in the same position as the learned judges who had to put an interpretation on the decree in Lachmi Narain v. Amolak Ram and Another. See Amolak Ram v. Lackkmi Narain, Ind. L.R. 19 Allah. 174 In that case the learned judges held, first, that where it is possible to do so the construction to be placed upon a decree is that construction which would make the decree one in accordance with the law; and secondly, that if a decree goes beyond what the law allows and leaves no room for doubt as to the construction to be placed upon it, then the Court executing the decree has no option but to execute it for the sum decreed, even though it be a sum beyond what the law allows.

7. In the case referred to it was laid down that under Section 88 of the Transfer of Property Act, which prescribes the nature of the decree to be made in a suit by a mortgagee for sale, it is not competent for the Court to give interest beyond the day fixed for payment into court of the amount declared necessary to effect redemption and to avoid sale. The view of the High Court then is quite clear in its application to the decree in this suit. They think that the specifications under head (e) are inconsistent with the results which would otherwise follow upon heads (a), (6), (c), and (d); there is therefore a serious ambiguity in the decree; and they are bound to incline to that construction which would make it in accordance with law, rather than to the opposite one.

8. Their Lordships agree that all ambiguous documents should be construed rather to make them accord with law than to make them conflict with it. But they are unable to see any such ambiguity in this decree as to call for the application of that principle. In their view the foundation of the decree is contained in head (b). That head decrees the entire claim of the plaintiff. The claim so decreed is set forth in head (a). It is principal and interest due to the date of the plaint, plus interest to accrue due between the date of the plaint and the date of payment, plus the costs of suit with interest thereon up to the date which may be fixed by the Court. The plaintiff seeks that all this shall be ordered to be paid. The sentence is not happily constructed, but such is the reasonably clear outcome of it. Then heads (c) and (d) mention interest subsequent to date of suit. There is a reason for that, because the sums of interest allowed-first, up to date of suit; secondly, between that date and the decree (pendente lite, as it is called); and, thirdly, after decree-differ in point of rate. All the same, these two heads are included in the plaintiffs entire claim. Then comes head (e). In it the Court calculates beforehand, instead of leaving for subsequent account, the amounts which the mortgagor must pay on July 20 in order to redeem his property and avoid a sale. If he does not pay, the further part of the decree-head (f)-is to be executed. But there is nothing to say that if the mortgagee is kept out of his money beyond July 20 he is not to have interest upon it, nor any intimation that the Court considered the relief given by the first four heads to be restricted by head (e). As, then, there is no inconsistency, the duty of the executing Court is, as the High Court rightly points out, to carry the orders of the decree into effect, as being conclusive between the parties whether it may or may not be disputable in point of law.

9. Apart from the question whether the Court could lawfully give interest to the day of payment, the only difficulty of construction suggested by the learned judges is the omission of words equivalent to "with future interest to the day of payment." But it is not clear what difficulty this omission creates, nor at what point those words should be expected to come in. They could not come into head (e), because that relates only to the period terminated by July 20. Head (f) does not specify any particulars, but uses the term "decretal amount." It is true that the term is used rather loosely, and has to be applied to subsequent changes of event. On its first appearance it does mean the sums specified under head (e), because it is then referring to July 20, the critical moment which is to determine whether there shall be redemption or sale. On its subsequent appearances the Court might with propriety have used the words the omission of which has struck the High Court as strange. But there is no inconsistency or, indeed, difficulty in supposing that the term "decretal amount" means the amount due whenever the decree is speaking or being called into action under heads (a), (b), (d). It is far more difficult to suppose that the Court, though contemplating a sale, and more than one sale, with the inevitable delays, before the debt could be got in, should at each successive time have considered the "decretal amount" to be the amount required on July 20 in order to avoid any sale at all.

10. This view of the decree is sufficient to decide the present appeal. But a question of such great and general importance has been raised by the judgment of the High Court that their Lordships cannot, with due regard to public convenience, avoid passing an opinion on it. If the effect of the Transfer Act be as alleged, it works a startling abridgment of the remedies of mortgagees as previously understood. So far as appears from reported cases, or from anything known to the counsel who argued this appeal, it was a new discovery in the year 1896 when the case of Amolak Ram Ind. L.R. 10 Allah. 174 was decided, and when the execution now under discussion was applied for. It is, therefore, not surprising that other Courts should have felt difficulty in following the Allahabad decision.

11. Mr. Mayne rather flatly refused to argue his case on the ground that the decree of 1886 would be illegal if construed in favour of the plaintiffs view. But the authorities cited by Mr. Boss show strong judicial reasons against taking such a ground. To the report of Achalabala Bose v. Surendra Nath Dey Ind. L.R. 24 Calc. 766 there is appended a note by the registrar of the High Court of Calcutta setting forth the rules of that Court and the practice under them, and the effect which the principle of the Allahabad decision would produce on the prevailing views of mortgagees rights. When the last-named case came to be decided, which was in July, 1897, the Calcutta High Court pointed out not only a departure from received practice in the Allahabad view of Section 88 of the Transfer Act, but its inconsistency with Section 97 of that Act, and with the form of suit sanctioned by No. 109 in the 4th schedule of the Procedure Code of 1882. And on this more extended view of the law they decided that the prevailing practice is a lawful practice, and that Section 88 should be construed so as not to interfere with it. The same question came before the High Court of Madras in the case of Suhbarayar v. Ponusami Ind. L.R. 21 Mad. 364, when that Court expressed dissent from the Allahabad decision.

12. In the recent case of Bakar Sajjad Ali Ind. L.R. 21 Allah. 361 the High Court of Allahabad itself overruled the decision in Amolak Rams Case. Ind. L.R. 19 Allah. 174 Perhaps they rested undue weight on a decision of this Board. It is true that in the case of Rameswar Koer L.R. 25 Ind. Ap. 179, decided in July, 1898, this Board upheld the High Court of Calcutta in awarding interest subsequent to the date fixed for payment by the mortgagor, which would have been wrong if the decision in Amolak Ram Ind. L.R. 19 Allah. 174 had been right. But that point was not raised, and probably never was thought of by anybody until Amolak Rams Case Ind. L.R. 19 Allah. 174 came to be known, so that the decision of this Board is rather a proof of the prevalence of doctrines contrary to the principle of Amolak Ram Ind. L.R. 19 Allah. 174 than a conscious pronouncement against it. Nevertheless, the Allahabad judges in giving their decision add a reason of their own for overruling Amolak Ram Ind. L.R. 19 Allah. 174, which seems to their Lordships of importance, to the effect that the object of fixing a day for payment by the mortgagor is for the purpose of assigning a definite time at which the mortgagors right of redemption is to cease, and the mortgagees right to foreclose or sell is to attach, and not for the purpose of staying the payment of interest.

13. It must be admitted that the language of Section 88 is calculated to cause difficulty, and a sort of difficulty which is a common cause of conflict in judicial interpretations of new statutes. It looks as if the draftsman of the Transfer Act had overlooked the difference between a foreclosure and a sale, and had forgotten that in the former case interest stops because the mortgagee gets the property in lieu of his debt, whereas a sale must be subject to some substantial delay, and in many cases is subject to long delays. However that may be, there is the difficulty, and, if Section 88 could be looked at as an isolated enactment quite detached from other legal considerations, it would be hard to construe it otherwise than was done by the Allahabad Court in the case of Amolak Ram. Ind. L.R. 19 Allah. 174 But, considering the universality of the long-established practice, its continuance for years after the Transfer Act was passed, the manifest justice of it, the lack of any apparent reason for upsetting it, the conformity with it of Section 97 which is in pari materia with Section 88, the presumption that Section 88 was framed with reference not to the running of interest but to the determination of the time for redemption or sale alternatively, and the form of suit sanctioned by the Procedure Code, their Lordships have no hesitation in expressing their concurrence with the Courts of Calcutta and Madras, and with the ultimate decision of the Court of Allahabad.

14. Their Lordships are of opinion that the order appealed from and that of the Subordinate Judge should be discharged, and that the case should be remitted to the Subordinate Judge for execution of the original decree with a declaration that, according to the proper construction of that decree, the plaintiff is entitled to interest at 8 annas per cent, up to the date of payment. The plaintiff should have his costs in both Courts.

15. Their Lordships will humbly advise Her Majesty to pass an order accordingly, and the respondent must pay the costs of this appeal.