1. This is an appeal against a final decree in a redemption suit. The final decree was made on July 1, 1929. There had, however, been a preliminary decree, made on January 4, 1929, against which an appeal was made to this Court, No. 205 of 1926. The redemption suit was in respect of two mortgages, each for a different sum, executed in 1881 and 1892. The original Court had held that plaintiffs were not agriculturists, and had directed an account to be taken on that footing. In this Court it was held that the defendants were agriculturists, and consequently that they were entitled to have an account taken under the provisions of the Dekkhan Agriculturists' Relief Act. It was also held on the question of the consideration of the earlier mortgage, that it was all furnished, and that it amounted to Rs. 13,206-8-0. As to the consideration of the second mortgage, it was found that the question could not then be disposed of, since that mortgage had been based on a series of khatas, an account of which had to be taken under the Act by a Commissioner. This Court, therefore, varied the original Court's preliminary decree, and directed accounts of the first mortgage to be taken as set out in that judgment, and an account of the second mortgage to be taken by a Commissioner, under the Dekkhan Agriculturists' Relief Act, and the question of instalments, if any, was directed to be decided after the final decree was drawn up. This judgment was delivered on September 3, 1929, two months after the final decree in the suit was made by the original Court.
2. The fact that a final decree had already been made was not brought A.C.J. to the notice of the Bench which heard the appeal against the preliminary 1934 decree, and this fact has caused so much delay since then. We think, it is clear that the final decree, based on findings of fact and law which have been set aside by this Court, must be reversed, and that the matter 'must be remanded to the original Court for the taking of an account, as directed in the judgment of September 3, 1929, which we understand has not yet been done, as the accounts that have been taken are under the Civil Procedure Code, and not under the Dekkhan Agriculturists' Relief Act, and only up to 1922, which is the date of the suit.
3. Mr. Dikshit for the appellants has now raised another question and has argued that as mortgagees have been in possession from the date of suit till 1928, when possession was given to the mortgagors, his clients are not bound to account for rents and profits received in that interval. He relied on the ruling in Ramachandra Venkaji Naik v. Kallo Devji Deshpande I.L.R. (1915)39 Bom. 587 : 17 Bom. L.R. 630, a decision of Sir Basil Scott and Mr. Justice Shah, in which in somewhat similar circumstances it was held that the mortgagee remained a mortgagee for the purpose of the redemption suit, even assuming that he had been in possession for more than twelve years since the death of the original mortgagor, and further that mesne profits from the date of suit could not be awarded to the mortgagors as the enforcement of the provisions of Section 13 of the Dekkhan Agriculturists' Relief Act, 1879, placed the mortgagor in a much more favourable position than he would be in, if he relied upon the terms of the contract, and no presumption could arise that the mortgagee was, apart from the provisions of the Dekkhan Agriculturists' Relief Act, not entitled to retain possession after the date of the institution of the suit.
4. This bench has discussed the point raised by Mr. Dikshit recently, and the view taken in our judgment was, that since Section 13 of the Dekkhan Agriculturists' Relief Act provides for an account to be taken to the date of suit but not thereafter, and where, as in that case, the mortgagee has remained in possession, the provisions of Order XXXIV, Rule 7, Civil Procedure Code, then take effect.
5. Mr. Solomon for the respondents has also drawn our attention to the case of Mohamad Ebrahim v. Shaikh Mohamad I.L.R. (1919) . 44 Bom. 372 : 22 Bom. L.R. 124 There
Plaintiffs sued for accounts and for redemption of a mortgage under the Dekkhan Agriculturists' Relief Act and obtained an instalment decree for redemption in their favour. By the terms of the decree, the plaintiffs were directed to pay a certain amount with interest at 6 per cent, per annum from the date of suit and were held entitled to recover possession of the property mortgaged at once, the mortgagee being liable to account for profits received from the date of suit till restoration of possession to the plaintiffs. The mortgagee having objected to that part of the decree which gave him interest and directed him to account for mesne profits: [it was]
'Held..that under section 15B(7) of the Dekkhan Agriculturists' Relief Act, the Court had power to allow interest to the mortgagee and to direct him to account for mesne profits from the date of suit till restoration of possession.
6. On the facts of the present case, we think that the proper direction to make is that an account should be taken of the consideration for the second mortgage as required by Section 13 of the Dekkhan Agriculturists' Relief Act, and 1934 also of the first mortgage on the basis that its consideration was Rs. 13,206-8-0, the mortgagees being allowed interest at six per cent, on that , amount till date of suit, as already decided in Appeal No. 205 of 1926, MAHOMED and that from the date of suit to the date of the preliminary decree, an KHAN account should be taken in the terms of Order XXXIV, Rule 7, the mortgagees' rents and profits being calculated, and interest at six per cent, per annum being credited to the mortgagees on the amount due to the defendants at the date of such decree being determined.
7. Costs costs in the suit. The cross-objections are dismissed.