Karamat Husain and Chamier, JJ.
1. This appeal arises out of a suit by respondents 1, 2 and 3, for redemption of a mortgage made in the form of a zar-i-peshqi lease on February 12th, 1852, by one Muslima Bibi, in favour of the appellants and respondents 4 to 48 or their predecessors in title, The deed provided that the mortgagees should enter into possession and collect the rents and pay the Government revenue and defray collection charges &c.;, therefrom and retain the balance in lieu of interest. There was to be no accounting on either side and the mortgagors were to be entitled to redeem on payment of the principal sum Rs. 252. The case of the plaintiffs respondents was that the mortgage was subject to the provisions of Bengal Regulation XV of 1793; therefore, the mortgagees were not entitled to more than 12 per cent, per annum on the principal sum, notwithstanding the provisions of the deed, and that if an account were taken of profits received by the mortgagees, it would be found that the principal sum and interest had been satisfied many years ago, and that a large sum was due to the plaintiffs respondents. The Subordinate Judge gave them a decree for possession of the property and for Rs. 3,305-8-9 on account of surplus profits and interest thereon up to the date of the suit and directed an inquiry as to the profits during the suit and up to the delivery of possession. The decree was confirmed on appeal by the District Judge. In second appeal it is contended in the first place that the suit is barred by limitation. Dr. Tej Bahadur argues that if Regulation XV of 1793 applies, as the plaintiffs respondents say, the mortgagees were not entitled to more than 12 per cent, per annum on the principal sum notwithstanding the terms of the deed, and an account must be taken of what the mortgagees have received and the mortgage must be considered to have been in the words of Section 10 of the Regulation 'virtually and in effect cancelled and redeemed' as soon as the principal sum with simple interest at 12 per cent per annum had been realized from the usufruct of the property, and thereafter the mortgagee's possession must be deemed to have been adverse; consequently the mortgagor's right to recover the property was barred under Section I(12) of the Limitation Act XIV of 1859, on the expiry of 12 years from the date on which the principal and interest were satisfied out of the usufruct. There can be no doubt that the mortgage was originally subject to Regulation XV of 1793, which was made applicable to the Azamgarh district by Regulation XVIII of 1806, and that, as held in Samar Ali v. Karimullah (1886) I.L.R. 8 All. 402 it remained subject to the former Regulation notwithstanding the passing of the Usury Laws Repeal Act XXVIII of 1855. Therefore the plaintiffs Were entitled to an account of the profits received by the mortgagees. But we cannot accept the argument that the right of the mortgagors to recover the property became barred by limitation upon the lapse of twelve years from the date on which the principal and interest were satisfied out of the usufruct. Prior to the passing of Act XIV of 1859, there was no limitation for a suit for redemption of a mortgage, Section I(15) of that Act provided that the period of limitation applicable to a suit against a mortgagee for the recovery of immovable property mortgaged should be sixty years from the date of the mortgage, and there are similar provisions in the Limitation Acts of 1871, 1877 and 1908. The possession of a mortgagee does not become adverse to the mortgagor merely because the mortgagee remains in possession after the mortgage money has been satisfied out of the usufruct or has been otherwise paid off. Much more is required to set time running against the mortgagor. We agree with the Sudarshan Das Shastri v. Ram Prasad (1910) I.L.R. 33 All. 97 that the provision in Section 10 of the Regulation of 1793, that a mortgage shall be deemed to be cancelled and redeemed, does not mean redeemed in the full sense of the word. It appears to us that on the passing of Act XIV of 1859 the mortgagor's right to redeem became subject to Section I(15) of that Act and a suit for redemption could be brought at any time within sixty years of the mortgage. In our opinion the suit is not barred by limitation.
2. The next point taken is that the plaintiffs respondents are not entitled to an account of the profits received by the mortgagees. As already stated, we are of opinion that the mortgage has all along been subject to the provisions of Regulation XV of 1793, therefore the plaintiffs respondents are entitled to an account of the profits. Dr. Tej Bahadur relied upon the decision-in Shafi-un-nissa v. Fazal Rab (1910) 7 A.L.J. 787 but the mortgage in that case was made in January, 1866, and therefore was never subject the Regulation of 1793. He relied also on the case of Badri Prasad v. Murlidhar (1873) I.L.R. 2 All. 593 : L.R. 7 I.A. 5 but that case is clearly distinguishable from the present case. The sum to be received by the mortgagee was a fixed sum not as here a fluctuating amount, and their Lord ships were careful to point out that they did not decide that, if the amounts received by the mortgagee had been fluctuating, it would not have been necessary to take an account against him.
3. The third and last point taken is, that the courts below were wrong in allowing the plaintiifs respondents interest at 12 per cent per annum on the annual surplus profits. In allowing interest at the above rate the courts below relied upon the Judgment of this Court in Bechoo Singh v. Rai Sheo Sahoy N.W.P. H.C. Rep. 1869 p. 111 in which it was said that it was an established practice in cases of this kind to allow the mortgagor, interest on the surplus profits at the rate allowed to the mortgagee on the mortgage-debt. It is not con-tended that no interest should have been allowed and in the circumstances, we think that 12 per cent, is a fair rate.
4. The appeal fails and is dismissed with costs.