S.P. Mitra, J.

1. This is a suit on an overdraft account. The Defendant No. 1 was the borrower. Promissory notes, deeds of hypothecation and other documents were executed by the Defendant No. 1 from time to time since 1946. The limit of the overdraft was also increased from time to time. The rate of interest was varied as well. Kartick Charan Mullick, since deceased, had personally guaranteed the repayment of the loans to the Bank and executed an equitable mortgage of a property at Marquis Lane in Calcutta. Upon the death of Kartick Charan Mullick the Defendants Nos. 2 and 3 who are his executors also gave personal guarantees along with the Defendant No. 4 who was a Director of K.C. Mullick and Sons Ltd.

2. The Defendant No. 1 went into liquidation on September 8, 1958. This order for winding up necessitated certain amendments to the plaint which were effected under an order of this Court made on February 24, 1964. It appears that all the deeds of hypothecation executed by or on behalf of the Defendant No. 1 till March 26, 1964, were registered in accordance with the provisions of the previous Companies Act. But the deeds executed on March 5, 1957 were not registered. The result is that under Section 125 of the Companies Act of 1956 these deeds are void against the Liquidator.

3. Mr. R.C. Kar appearing for the Liquidator has argued before me that the Plaintiff originally filed this suit on the 1957 group of documents treating them as documents on which the Plaintiff's claim rested. In Clause (c) of the prayers in the original plaint a declaration of charge was asked for in terms of the deeds of hypothecation, of March, 1957. When the Liquidator pointed out that these documents of 1957 could not be availed of against him, the Plaintiff asked for amendments and in the amended plaint a declaration of charge was claimed both on the deeds of 1954 and those of 1957. Mr. Kar then said that there was ample internal evidence to show that the Plaintiff accepted the 1957 documents in substitution of the 1954 documents. In the 1954 documents the limit of the overdraft was Rs. 2,50,000. In the 1957 documents the limit was Rs. 2,72,013-8-2 p. In the promissory note and the deeds of hypothecation executed in 1957 the increased limit of Rs. 2,72,013-8-2 p. has been mentioned. Then again, the deeds of hypothecation of 1957 create, according to Mr. Kar, charges by themselves and do not refer to the earlier documents. Moreover, when the 1957 documents were executed Kartick Charan Mullick had died; his guarantee had lapsed; and separate letters of guarantee were taken from the Defendants Nos. 2, 3 and 4.

4. From all these facts Mr. Kar wants me to come to the conclusion that by the deeds of hypothecation of 1957 the earlier deeds of 1954 had been superseded altogether and since the deeds of 1957 were not registered they were void against the Liquidator and no declaration of charge over debts, goods or assets hypothecated could be made in favour of the Plaintiff in this suit. Learned Solicitor for the Liquidator stated that the principle which the Judicial Committee had laid down in Har Chandi Lal v. Sheoraj Singh 44 I.A. 60 would not apply to this case. If a second mortgage is executed, submits Mr. Kar, in substitution of the first mortgage and the second mortgage is initially bad then the first mortgage may be revived. But in this case the second deed of hypothecation was a valid document when it was executed; it was valid even when the suit was filed and it became ineffective against the Liquidator only when the order for winding up was made.

5. Now, the doctrine of reviver has been discussed iii Ghosh on 'Mortgages', 5th ed, at p. 501, in these words:

But if the higher security becomes ineffectual, the lower security will be revived; thus, for instance, if there is an equitable mortgage and a legal mortgage is subsequently given, but it is avoided by a prior act of bankruptcy, the equitable mortgage will be revived. So also, though the lien of the salvor may be discharged and his priority lost by his taking a contractual mortgage, the lien will not be extinguished by the mere acceptance of another security, if it turns out to be worthless. So, again, where a second charge is ineffectual, because it could not bind the true owner of the property, it was held that there was no merger; for a good prior security cannot merge in a later charge which is inoperative.

6. A few decisions of the Bombay and Madras High Courts may also be referred to in this connection. In Jivandas v. Framji 7 Bom. H.C. Rep. 45 OCJ, a lien was created by a verbal contract and deposit of title deeds of immovable property in the island of Bombay. The lien was created before January 1, 1865, when the First General Registration Act of 1864 came into force. An unregistered Gujrati document was subsequently executed on June 13, 1865, which set out the particulars of the lien and acknowledged the receipt of the loan on account of which the lien was given. It was held that the original oral contract of lien, being in itself a perfected transaction, was not merged in or invalidated by the subsequent document and that, therefore, the fact of the latter not being registered did not affect the validity of the prior transaction. The effect of this judgment was discussed by Mr. Justice Farran in Jaitha Bhima v. Haji Abdul 10 Bom. 634, 644. Mr. Justice Farran says:

No difficulty arises when title deeds are deposited with the declared intention to secure an antecedent debt, or a present advance, or under circumstances such that the law will imply that they are so deposited and subsequently the depositor of the deeds executes a legal mortgage, or other document of charge, which for want of registration cannot be given in evidence. The invalid legal mortgage or document charging the land does not, in such cases, destroy or impair the prior valid equitable charge.

Then in Arumugam Pillai v. Pariasami 19 Mad. 160, in a suit to redeem a mortgage of 1876 which had been lost and admittedly had not been registered, it appeared that, it had been executed in consolidation of two prior mortgages, executed in 1856 and 1860 respectively. The Madras High Court held that the Plaintiff was not entitled to a decree on the footing of the unregistered mortgage which could not be proved, but he was entitled to redeem the two previous mortgages if they were found to be genuine and valid.

7. It is clear, therefore, that reviver is a doctrine in equity for the purpose of doing justice subject, of course, to the law of limitation. There is no question that if the second document is void at its inception the earlier document is revived. The point that arises, in this case is, whether the first document would be revived if the second document is not void at its inception but becomes void at a subsequent date. In the context of the equitable doctrine of reviver, on principle, I do not see any difference between a document void ab initio and a document which becomes void. To both the cases, in my view, the rule of reviver ought to apply.

8. In such cases there should also be on principle no difference between a document which is void at its inception and a document 'which is potentially void. In the instant case the deeds o£ hypothecation of 1957 became actually infirm when the liquidator was appointed. They were potentially void from the very beginning as in the case of every limited company there is always a possibility, however remote, of a subsequent Order for winding up. In this view of the matter, I am of opinion that, the deeds of hypothecation of debts and assets dated March 5, 1957, are void against the Liquidator. Since the deeds of 1957 have become ineffectual, the deeds executed on March 26, 1954, must be revived and the Plaintiff is entitled to a declaration of charge on the basis of the document of 1954. The deeds of 1954 created charges as securities for payment to the Bank on demand of the balance of accounts at any time on the cash credit account and future indebtedness and liabilities of the borrower to the Bank of any kind in any manner, accrued or accruing with all relative interest, charges, costs (as between attorney and client) and expenses.

9. There is another reason why the deeds of 1954 are binding on the Liquidator. In Clause 10 of the deed of hypothecation of goods of 1954 and in Clause 7 of the deed of hypothecation of debts and assets of 1954 it was, inter alia, provided that nothing in these deeds would prejudice the Bank's rights or remedies in respect of any present or future security. Similarly, Clause 1 of the deed of hypothecation of debts and assets of 1957 provides for hypothecation of properties "except property effectively otherwise hypothecated, charged or mortgaged to the Bank". Again, in Clause 7 of this document it is stated that nothing in the document shall prejudice the Bank's rights or remedies in respect of any present or future security. Then in Clause 10 of the deed of hypothecation of goods of 1957 it is stipulated that nothing in that deed shall operate to prejudice the Bank's rights or remedies in respect of any present or future security. In view of these conditions introduced into the various documents referred to above. I think it is not open to the Liquidator to contend on the facts of this case, that since the deeds of 1957 are void against him, there can be no claim of the Plaintiff based on the documents of 1954. I am of the view that these stipulations, apart from the question of reviver enable the Plaintiff to ask for a declaration of charge in respect of debts, goods and assets covered by the 1954 documents.

10. The next point is that the Defendants Nos. 2, 3 and 4 in their letters of guarantee dated March 5, 1957, took upon them selves the liability to the Bank to the extent of only Rs. 2,72,013-8-2p. The Bank in this suit asks for a decree for Rs. 2,95,089.79 with further interests and costs. The decree that is to be passed in this suit against the Defendants Nos. 2, 3 and 4 personally must, in the circumstances, be restricted to the maximum limit of Rs. 2,72,013-8-2p.

11. I now come to the question of interests payable to the Plaintiff Bank. Mr. R.C. Kar for the Liquidator drew my attention to the averments in para. 17 of the plaint. In this paragraph it is stated, inter alia, that the rate of interest was enhanced from 6 per cent to 7 per cent from June 1957 and the Defendant No. 1 accepted the same or did not raise any objection thereto. Mr. Kar contended that there was no document supporting these averments and I ought not to allow interest at 7 per cent, with monthly rests for any period whatsoever.

12. Pliant Bhusan Ganguli of the Plaintiff Bank has deposed before me. He had said in qq. 54-55 that the interest was enhanced to 7 per cent, from June 1957 and the Defendant No. 1 did not object to the raising of interest. This evidence of Phani Bhusan Ganguli remains uncontradicted. I gave opportunities both to Mr. Kar and to Mr. Mukherjee, Learned Counsel for the Defendants Nos. 2, 3 and 4 to cross-examine Ganguli, but he was not cross-examined on this particular point. In the premises it would not be proper for me to disallow the enhanced interest claimed by the Bank.

13. Then, it is urged both on behalf of the Liquidator and on behalf of the Defendants Nos. 2, 3 and 4 that I should not allow any interim interest in this suit in the exercise of my discretion in this matter. The allegation is that the hearing of the suit has been inordinately delayed due to the fault of the Plaintiff. The suit was instituted, I find, on April 15, 1958. On September 8, 1958, an order for winding up of the Defendant No. 1 was made. After this order was made it was essential that the Plaintiff should amend the plaint. I am not thinking of formal amendments that were necessary. I have said earlier in this judgment that in the original plaint in Clause (c) of the prayers a' declaration of charge was prayed for on the basis of the deed of hypothecation of goods and the deed of hypothecation of debts and assets dated March 5, 1957. After the order-for winding up, for reasons already stated, this declaration was not available to the Plaintiff against the Liquidator. That is why by a subsequent amendment the Plaintiff claimed the declaration both on the documents of March, 1954 and those of March, 1957. Without this vital amendment the Plaintiff could not proceed with the suit against all the Defendants. I have been informed by the parties appearing before me that the Plaintiff on September 10, 1958, soon after the order for winding up obtained leave of this Court to continue the suit against the liquidator but the application for amendment of the plaint was not made till September 27, 1963. While granting interim interest to the Plaintiff I cannot justify this delay in applying for amendment of the plaint. I am, therefore, of opinion that no interim interest should be allowed to the Plaintiff from September 10, 1958, to September 27, 1963.

14. In the result there will be a decree for Rs. 2,95,089.79 j against the Defendant No. 1 and the Defendants Nos. 2 and 3 in their capacities as executors to the estate of Kumar Kartick Charan Mullick deceased, together with interim interest at the rate of 6 per cent per annum from April 15, 1958 to September 9, 1958 and from September 28, 1963 to November 18, 1965. The Plaintiff would also be entitled to interest on judgment at the rate of 6 per cent per annum and the costs of the suit as against the said Defendants as between attorney and client. Certified for two counsel. There will also be a decree for Rs. 2,72,013.53 against the Defendants Nos. 2, 3 and in their personal capacities as guarantors. There will be a declaration that the plants, machinery, goods and other assets belonging to the Defendant No. I arid mentioned in the deed of hypothecation of goods and the deed of hypothecation of debts and assets, dated March 26, 1954, stand charged with the payment of the Plaintiff's claim and the Plaintiff would be entitled to realize the sale proceeds thereof from the Liquidator in pro tanto satisfaction of the Plaintiff's claim. There will be a declaration that premises Nos. 17/1A, 17/1B, 17/1C, 17/1D, 17/1E, 17/1F, 17/1G, 17/1H, 17/1I, 17/1J, 17/1K and 17/1L, Marquis Lane, Calcutta, are charged with the payment of the dues of the Plaintiff.

15. There will also be a decree under Order 34, Rule 4 of the Code of Civil Procedure in Form No. 5-A in Appendix D to the First Schedule thereto in respect of the said premises. The Liquidator would be entitled to retain his costs of this suit out of the assets of the Defendant No. 1 as between attorney and client.

16. Lal Chand Mullick who is now the receiver of the mortgaged premises under an order of this Court made on December 3, 1958, is to continue until further orders of this Court. The rents that are realized by Lal Chand Mullick as receiver subject to deductions allowed under the said order of December 3, 1958, are to be made over by him to the Solicitor to the Plaintiff Bank. The Plaintiff Bank will accept these rents in pro tanto satisfaction of the Plaintiff's claim in this suit. The Liquidator will pay to the Solicitor to the Plaintiff Bank the sum of Rs. 20,305.19 being the balance of rents lying with him which he received from Lal Chand Mullick, the receiver and the Plaintiff Bank will accept this sum of Rs. 20,305.19 in pro tanto satisfaction of the Plaintiff's claim herein.