Ryves and Gokul Prasad, JJ.
1. This is an appeal by the plaintiffs in a suit for redemption. The facts are not at all complicated and are, shortly, these: The predecessors in title of the plaintiffs made a usufructuary mortgage of certain property on the 15th of July, 1882. On the 22nd of June, 1910, the last date of Jeth, the plaintiffs deposited in court the requisite amount of the mortgage money for payment to the mortgagees defendants. That being the last date of Jeth, as stated above, notice could not be served on the mortgagees within the month of Jeth. The mortgagees did not appear and those proceedings fell through. The money, however, remained in court all along. The plaintiffs mortgagors brought a suit, in the year 1915 for redemption of the mortgage and they claim damages for the last three years preceding the institution of the present suit. The defendants contended, inter alia, that the amount of the tender in the proceedings under Section 83 of the Transfer of Property Act was not enough and they further contended that the tender was not made at the proper time. The first court came to the conclusion that the tender was a right one, both as regards the amount and the time. It accordingly decreed the suit for redemption and for three years' mesne profits preceding the institution of the present suit. The mortgagees went up in appeal. The learned Judge of the lower court, without entering into the question whether the amount tendered by the mortgagors was sufficient or not, came to the conclusion that because notice of the deposit made by the mortgagors in court on the last day of the month of Jeth could not have been given to the mortgagees in the month of Jeth, therefore, the tender was not a valid tender and being as such inoperative, he dismissed the suit. The plaintiffs mortgagors come here in second appeal and their contention is that the tender on the last day of Jeth by deposit in court was a valid tender and that the suit has been wrongly dismissed. It was further contended on their behalf in argument that in any event they should have been allowed a decree for redemption from the beginning of the year succeeding the next month of Jeth. Before deciding this point we asked the court below to submit to us a finding on the question whether the amount tendered by the mortgagors plaintiffs by deposit in court was sufficient or not, inasmuch as the lower appellate court had failed to decide this particular point. The finding has now come back and is to the effect that the amount deposited by the plaintiffs in court was sufficient to discharge the mortgage. The only point which now remains for us to consider is whether the amount deposited by the plaintiffs mortgagors in court on the last day of Jeth was or was not a sufficient tender, within the meaning of Section 83 of the Transfer of Property Act, to enable them to obtain possession of the property and damages up to next Jeth. A large number of cases have been cited to us, but we do not think it necessary to discuss all of them as they are not strictly in point. There is no doubt that a suit for redemption can lie even without a tender as required by Section 83 of the Transfer of Property Act; see Het Singh v. Bihari Lal (1920) I.L.R. 43 All. 95. Of course, at whatever time the suit might be instituted in such a ease, the decree for redemption would only take effect from the time fixed in the decree or, in case of mortgages where any particular period of the year is fixed from which a mortgagee is to give up possession, from such a date next following the decree, In the present case, however, the money was to be paid on the last day of the month of Jeth in any year. The money, as we have stated above, was deposited on the last day of Jeth 1910. The argument placed before us is that as the mortgagees could not be served with notice of this deposit in court in the month of Jeth, therefore the tender was not a valid one and therefore the suit for redemption was to fail. This is the ground on which the court below has dismissed the suit. In our opinion this ground was not sufficient for the dismissal of the suit. As we have stated above, even if this tender was not enough to warrant the court in passing the decree for redemption from the date of the deposit, it was certainly proper and legal for the court to have passed a decree from the last day of Jeth next succeeding the date of the deposit. In the present case having regard to the fact that the plaintiffs have claimed damages for the three years next preceding the institution of the present suit only, and not from the date of the deposit, it is not necessary for us to decide this point. The plaintiffs would in either view be entitled to a decree for possession as claimed and damages for three years preceding suit. As the suit has been dismissed by the court below on a preliminary point this case must go back for the trial according to law of the issues left undecided. We, therefore set aside the decree of the lower appellate court, remand this case to that court under Order XLI, Rule 23, of the Code of Civil Procedure with directions to readmit the appeal to its original number on the register and to dispose of it according to law. Costs of ibis appeal will be costs in the cause.