Banerji and Aikman, JJ.
1. The appellant got a decree for sale under the provisions of Section 88 of the Transfer of Property Act. The decree was for sale on redemption by the appellant of two prior mortgages, one simple and one usufructuary. He paid into Court certain sums for satisfaction of the prior mortgages, and applied for the sale of the property. The Court of first instance disallowed his application on the ground that the payments by him had not been made within the time prescribed by the decree. The decree-holder appealed. The learned District Judge dismissed his appeal, although not on the ground upon which the Court of first instance had proceeded. The learned District Judge states that the decree-holder had paid the principal only of the two prior mortgages. It is admitted by the vakil for the respondent that the learned Judge has fallen into error as regards one of the mortgages, viz. the simple mortgage, inasmuch as the record shows that the appellant paid not only the principal, but also the interest due upon that mortgage. With regard to the usufructuary mortgage, the learned Judge says that the mortgagee had possession in lieu of interest, and he appears to be under the impression that so far as the usufructuary mortgage is concerned the appellant decree-holder had paid all that was due under it. This is not admitted by the respondent. It is stated that there is still a considerable sum due to the usufructuary mortgagee on account of interest. In order to enable me to dispose of this appeal, I find it necessary to refer to the lower appellate Court the following issue for trial under the provisions of Section 566 of the Code of Civil Procedure, viz., whether the amount paid by the decree-holder, Lala Debi Prasad, was sufficient to discharge the amount due under the prior usufructuary mortgage, On the return of the finding, ten days will be allowed for objection.
2. A return was made to tins reference that the decree-holder had paid all that was due under the two prior mortgages. But it was argued that the decree-holder, not having paid the amount which he had to pay within the time limited by the decree, had lost the right to redeem the prior incumbrances. A further reference was therefore made to the lower appellate Court as to whether the appellant, on or before the 30th July, 1899, had tendered to the prior mortgagees, defendants 2 and 3, the amount due under their mortgages. It was found that the decree-holder had not tendered the amount due on the prior mortgages on or before the 30th of July 1899, but had deposited it in Court after the period limited by the decree had expired. On the question whether the decree-holder could avail himself of the deposit so made, the appeal was referred to a Division Bench, by which, on the 28th May, 1902, judgment was delivered as below.
Banerji and Aikman, JJ.
3. The ruling in Ram Lal v. Tulsa Kuar (1896) I.L.R. 19 All. 180 is distinguishable from the present case. Besides, the view taken in that case was departed from by one of the learned Judges who was a party to that decision in the later case of Nihali v. Mittar Sen (1898) I.L.R. 20 All. 446. There is also in favour of the appellant the ruling in Raham Ilahi Khan v. Ghasita (1898) I.L.R. 20 All. 375 and the principle of the Full Bench ruling in Sita Ram v. Madho Lal (1901) I.L.R. 24 All. 44 also supports the case for the appellant. That being so, the payment of the amount of the prior mortgages by the appellant was sufficient to discharge those mortgages. We allow the appeal, and, setting aside the order of the Court below, we remand the case to the Court of first instance, with directions to re-admit it under its original number in the register and proceed to try it on the merits. The appellant will have his costs of this appeal. Other costs will follow the result.