1. The suit in respect of which this appeal arises was for redemption of a mortgage and was filed by the sons of the deceased mortgagor. The plaintiffs claimed to be agriculturists under the Agriculturists Relief Act. It was contended that if accounts were taken under the said Act, the mortgage debt would be found to have been discharged and they would be entitled to be put in possession of the property mortgaged. They claimed mesne profits from the date of suit.
2. Both the Courts below have concurred in holding that the debt has been wiped out,on taking accounts under Section 8, Agriculturists Belief Act, and as the debt was found discharged the suit for redemption was decreed. The learned Munsiff, however, allowed mesne profits from date of suit. But, on appeal, the learned Subordinate Judge held that the plaintiffs are not entitled to mesne profits from the date of suit. The plaintiffs have come up in appealand contend that they are entitled to mesne profits from date of suit. A plaintiff is entitled to mesne profits only from a defendant who is in wrongful possession of his property. It has to be stated that the mortgagee in this case was not in wrongful possession of the property till the relationship of mortgagor and mortgagee was put an end to under the decree of the Court. Under the terms of thecontract, the mortgage was subsisting and it is not possible to award mesne profits till it can be said that the defendant is in wrongful possession.
3. The Mysore Agriculturists Relief Act is intended to give relief to the agriculturists from indebtedness. It is not to get them any money which they have paid as per the terms of a contract but has been found to be in excess of what had to be paid on calculations being made under the Agriculturists Relief Act. Whatever may be the case with the Deccan Agriculturists Relief Act, Clause (3) of Section 8, Mysore Agriculturists Relief Act, which deals with the power of the Court to enquire into the history of transactions between the parties clearly states :
'Nothing contained in this section shall be deemed to empower the Court as the result of an investigation hereunder to grant relief by way of refund to an agriculturist, whether as plaintiff or as defendant, of any amount to which he is not otherwise entitled under any law for the time in force.'
Section 11 (1) no doubt states that the Court may, in its discretion, in passing a decree for the Act direct that any amount payable by the mortgagor under that decree shall be payable in such instalments, on such dates and on such terms as to the payment of interest, and where the mortgagee is in possession as to the appropriation of the profits and accounting therefor, as it thinks fit. The accounting could only be in the manner referred to in Section 8 of the said Act and it is made clear by Sub-section (3) that no refund of any money realised by the mortgagee under the terms of the contract is to be made.
4. Sir Charles Sargent in -- 'Janoji v.Janoji', 7 Bom 185 (A) observed that
'In a suit for account and redemption, if themortgagee, on taking the accounts, is foundto have been overpaid, the general practiceis to order the payment, by him, of thebalance due to the mortgagor, with interestfrom the date of the institution of the suit.'
In that case, the decree of the lower Court wasvaried by omitting the direction ordering thedefendant to pay the plaintiff the balance dueon taking accounts under the Agriculturists'Relief Act on the ground that
'There is no express provision in the statuteeither directing or enabling this to be done;and remembering that the Act encroaches onexisting legal rights, it should, on generalprinciple not be construed to extend beyondthe particular object which the Legislaturehad in view in passing the Act and which inthe preamble is said in express terms to beto relieve the agriculturist in the Deccan fromindebtedness.'
The decision in '7 Bom 185 (A)' was followed in -- 'Ramehandra Venkaji v. Kallo Devji', AIR 1915 Bom 131 (B) in which, it has been held that:
'Mesne profits from the date of suit could not bo awarded as the enforcement of the provisions of Section 13 of the Dekhan 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 Act, not entitled to retain possession after the date of the institution of the suit.'
5. A later decision in -- 'Mahomed Ibrahim v. Shaikh Mahomed', AIR 1920 Bom 241(1) (C) was brought to my notice. In that case it was held that under Section 158(1), Dekhan 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. That was however a case in which the debt had not been found to have been discharged even on taking accounts under the Agriculturists Relief Act, and no question of refund or allowing mesne profits after the date on which the debt was found to have been discharged arose for consideration. In fact the earlier decision in 'AIR 1915 Bom 131 (B)' was referred to and discussed in it. The lower appellate Court was therefore right in disallowing mesne profits from date of suit to the date of the decree on which date the relationship of the mortgagor and mortgagee came to an end by the direction of the Court and mesne profits could have been allowed from date of decree to date of recovery of possession.
6. In the result, the judgment and decree ofthe lower appellate Court is modified by allowing mesne profits from date of decree to dateof delivery of possession which shall be ascertained after an enquiry on an application madetherefor. The parties shall bear their owncosts in this appeal.
7. Decree modified.