Rowland, J.This appeal arises out of a suit to recover money secured on a mortgage of immovable property executed in favour of the father of the plaintiff in 1895. The properties are also subject to other mortgages and the priority of the mortgagees and their assignees was the subject matter of contention at the original hearing of the suit and of the appeal from the preliminary decree which was heard in this Court in 1925.

2. The questions of priority were decided in this Courts order dated 27th May 1925, Sripat Singh and Others Vs. Naresh Chandra Bose and Others, which varied the decree of the Court below and directed that accounts be taken of the dues of the several mortgagees and a decree be prepared for which directions were given in conformity with the provisions of Order 34, Civil P.C. The record was remitted to the Subordinate Judge for the taking of accounts and is now before us for our direction as to the preparation of the final decree. Objection to the statement of account prepared by the Subordinate Judge has been taken on behalf of the contesting defendants 2 to 4, and objection has also been taken on behalf of the plaintiff. On behalf of defendants 2 to 4 (of whom defendant 4 Jamahir Kumari died on 11th October 1925, and is represented by defendant 2) the only objection pressed is that the Subordinate Judge should have given credit for a payment of Rs. 3,971-4-9 said to have been made to the father of the plaintiff on 20th May 1897, and supported by a receipt. Having regard to the interest payable, this credit, if allowed, would affect the amount of the decree to the extent of a very much greater sum. No such payment was pleaded in the written statement in the Original Suit No. 268 of 1919. The objectors case is that the receipt was discovered in April 1929, among the papers relating to the property which had been released from management by the Official Receiver in August 1927. The objector followed up the filing of this receipt with petitions for orders of the Court to call for production of the plaintiffs books of account of 1897 and of the books of account of the Official Receiver. On 9th March 1931, the objector also filed with a petition two original letters dated 16th and 18th May 1897, and on account sheet dated 20th May 1897, and prayed that they might be taken in evidence along with the receipt previously filed.

3. The plaintiff objected to the reopening of the question of the amount due under his mortgage bond at this late stage. The Subordinate Judge on 6th May 1930, directed the issue of a commission for the examination in Calcutta of the Official Receiver or a member of his staff in connexion with the accounts. This commission was issued, but the pleader commissioner reported on 10th September 1930, that on the date fixed for executing the commission he found the plaintiff present and ready but no one was there on behalf of the objector. So he returned the commission without examining the witnesses.

4. In January 1931, it appears to have been realised by defendant 2 Sripat Singh, that the payment alleged was outside the scope of his pleadings in the suit. He presented on 27th January 1931, a supplementary written statement. The Subordinate Judge placed it on the record without then passing a definite order accepting or rejecting it. Eventually he refused to take in evidence the receipt for Rs. 3,971-4-9 and passed order on 10th March 1931 rejecting the additional written statement. The contention of the objector is that the supplementary written statement ought to have been accepted and that the receipt ought to have been taken in evidence and the payment supported by it ought to have been credited. Now it is a well-known principle that Courts should be careful in allowing parties to make out at at a late stage a new case different from that which was set up in their pleadings before the trial, and should not be too ready to receive in evidence documents produced very late with the allegation of their having been mislaid; and the respondent meets the contention of the objector by referring to the pleadings in the original suit.

5. There was a statement of account given in the plaint showing that interest on the original loan of Rs. 17,000 calculated up to January 1928 amounted to Rs. 5,420, against which payment of Rs. 4,500 is credited as made in January 1898, succeeding payments credited in the account bringing the total of payments credited in the plaint to Rs. 6,600. In the written statement of defendants 2 and 3 (para. 6) it is alleged that Rs. 6,700 has already been paid on account of interest. Thus the plaintiff and these defendants were at that time at variance only to the extent of Rs. 100 with regard to the question how much had been paid on account of interest. If a payment of Rs. 8,971-4-9 had been made in May 1897 there would not be Rs. 4,500 due on account of interest in January 1898, and it was, until 1929, the case of both parties that that payment had been made on account of interest. If there had been a payment in May 1827, as now suggested, it must have appeared in the books of the plaintiff as well as those of the Official Receiver, both of which wers produced at the original hearing before the passing of the preliminary decree. It is suggested for the plaintiff that Hari Charan Bose may have sent in his account accompanied by a stamped receipt in anticipation of payment, which payment was not in fact made. In India the practice of applying for payment of a debt by sending a receipt for the money is by no means unknown and is in fact referred to in 111. (i), Section 92, Evidence Act.

6. There is an indication that this was the case here in the fact that Hari Charan Bose submitted his account bearing date 20th May 1897, and that the receipt bears the same date. Had the receiver made a payment after receiving the account and had the receipt been given after taking the payment, it was more likely that the receipt should be dated one or two days later than the account. That being so, the conduct of the objector, as disclose in the commissioners report dated 10th September 1930, seems very significant. When it came to the examination of witnesses on commission in the office of Official Receiver on the question of the actual payment, he and his men failed to turn up. I would dispose of this objection by saying that no prima facie case is made out in support of the payment alleged; and we should not be justified in permitting the defendant to "reopen his pleadings and put the plaintiff to the expense and harassment of a fresh contest on evidence on the question of this payment. The objection of defendant 2 therefore fails.

7. It remains to consider the objections of the plaintiff. First it is said that the Subordinate Judges calculation of account is erroneous in that interest at bond rate has been calculated only up to six months after the date of this Courts order of 25th May 1925. Interest at the bond rate, it is stated should have been calculated up to the expiry of the period of grace. We have been referred to Order 34, Rules 2 and 4, Civil P.C. and to cases of mortgage suits in which interest at bond rate was allowed up to the expiry of the period of grace. But though it has been held to be quite correct to allow interest at the bond rate up to the expiry of the period of grace there is nothing in the Code compelling the Court to do so, and in the case of Raghunath Prasad v. Sarju Prasad AIR 1924 P.C. 60 interest at bond rate was allowed only up to date of the decree of the first Court, Indeed Order 34, Rule 2, as I understand it, contemplates a declaration of the amount due at the date of the decree, this declaration to be made (a) at the time of the judgment itself, or (b) after taking an account. The statutory authority for allowing interest at bond rate beyond the date of the preliminary decree appears to be in Order 34, Rule 11, and here the provision is "the Court may order payment of interest." In this appeal, the date up to which interest at bond rate was to be calculated is fixed in the order of this Court of 25th May 1925 as being six months from date of that order. It was not open to the Subordinate Judge and it is not open to us to fix another date.

8. The second objection is that as defendant 2 has succeeded to the interest of Jamabir Kumari, the prior lien declared by the Court in favour of Jamahir Kumari over the Calcutta property has become extinct.

9. A mortgagor cannot, it is said, by paying off a prior mortgage hold it up as a screen against a subsequent mortgagee. This however is not a case in which a mortgagor has paid off the amount of a prior mortgage. The mortgagor is dead.Jamahir was held to have purchased the assignment of the prior mortgage in her own right and not as a farzidar for the original mortgagor, and her rights had passed beyond the domain of contract to that of decree when this Court passed its order on 27th May 1925. On her death thereafter the rights assured to her by this Courts order could not be denied to her legar representatives. The result is that the objections of the plaintiff to the account prepared are disallowed and the account is confirmed. A final decree will be prepared declaring the amounts due under the several mortgages on 25th November 1925, as ascertained by the Subordinate Judge and allowing simple interest at 6 per cent on these amounts till realization. The date of grace we fix at six months from this date.

10. A word is necessary as to the unfortunate delay in the disposal of these proceedings. The suit was instituted in 1919 and preliminary decree was passed by the Subordinate Judge on 8th October 1920. The appeal from that decision presented on 25th April 1921 was heard in April 1925 and the subsequent proceedings before the Subordinate Judge lasted till 31st March 1931. A good deal of the delay appears to be due to the residence of some of the parties in Calcutta and to contested applications for issue of commissions for examination of witnesses. But in spite of the obvious difficulties in disposing of the matter promptly the delay in the Court of the Subordinate Judge was clearly excessive.

Kulwant Sahay, J.

I agree.