1. This is a plaintiff's appeal. The plaintiff filed a suit for redemption of a mortgage dated 26th March 1906. The mortgage was for RS. 850 and was a usufructuary mortgage. The mortgaged property was leased to the mortgagor on an annual rental of Rs. 64, but the mortgagor made default in payment of rent with the result that decrees for arrears of rent were obtained against him and he was ultimately ejected in execution of the said decree. In spite of the ejectment proceedings he, however, continued to remain in possession for a period of about eight years. After the mortgagee, the defendants' predecessor, had secured possession he again let out the land to the mortgagor on an annual rental of Rs. 15 and the mortgagor remained in possession of the land for a number of years under the new lease. The mortgagor is an agriculturist and he wanted the accounts to be taken in accordance with the provisions of Section 9, U.P. Debt Redemption Act. After taking the accounts, the trial Court held that a sum of Rs. 829 was still due under the mortgage and passed a decree for redemption on payment of the said amount. The mortgagee defendants filed an appeal in the Court below and they urged that the trial Court had erred in holding that only Rs. 329 was due to them. The appeal in the lower appellate Court was valued at Rs. 521 which was the difference between the sum of Rs. 329 and Rs. 850, the original mortgage amount.
2. The trial Court had interpreted Sub-section (3) of Section 9, U.P. Debt Redemption Act 18[XIII] of 1940, to mean that the mortgagee could in all get an equal amount as interest during the whole period of the mortgage, that is, the mortgage being for a sum of Rs. 850 the plaintiff was not entitled to get more than Rs. 850 in all, that is, Rs. 1700 in all from the mortgagor. The Court below has rightly pointed out that this view is erroneous. All that the sub-section means is that at the time of the accounting the debtor shall not get as interest more than the amount of the principal outstanding on that date. So far the lower appellate Court has correctly interpreted the subsection. Learned Counsel has, however, pointed out that the next sentence in the judgment of the lower appellate Court may give rise to a misconception where it is said that at the time of accounting the interest shall not exceed Rs. 850. Reading the paragraph as a whole, the meaning of the lower appellate Court is quite clear, but to avoid any future misunderstanding we may make it clear that Sub-section (3) of Section 9, Debt Redemption Act, only provides that the amount of interest allowed shall not exceed the amount of principal outstanding on the date of the accounting. If the whole principal sum of Rs. 850 is due no doubt the Court can allow interest up to Rs. 850, but in case a part of the principal sum has been paid off there would have to be a consequential reduction in the amount of interest.
3. The lower appellate Court found that a sum of Rs. 100 alone was realised by the mortgagee from the mortgagor during the period of eight years when the mortgagor was in possession of Jitpore before his ejectment therefrom. Learned Counsel for the appellant has admitted that he cannot challenge this finding which is a finding of fact but what he has argued is that Section 9 provides that in taking the accounts the Court shall take as realised not only the amount that has come into the hands of the mortgagee but also such amount which, with the exercise of ordinary diligence, might have been realised by him. Learned Counsel has urged that the mortgagee might with ordinary diligence have realised the rest of the money, due to him from the mortgagor. This plea, that the mortgagee might have realised more, is available to the mortgagor if the amount is to be realised from a third party. The principle behind the rule is that the mortgagor should not be made to suffer loss which has been incurred due to the negligence of the mortgagee in not realising amounts which he could have realised. The mortgagor cannot take advantage of his own default and say that though he did not pay the money to the mortgagee he should get, credit for it as the mortgagee, if he had enforced his rights and had exercised due, diligence, might have realised the money from him. There is no force in this contention. We dismiss this appeal with costs.