1. This was a suit for redemption of a mortgage. During the minority of the plaintiff there had been certain litigation between the parties which resulted in a finding that the mortgage debt due from the plaintiff amounted to only Rs. 45-8-0. Upon this the plaintiff deposited this sum under Section 83 of the Transfer of Property Act, and brought a suit for possession by redemption of the mortgage. This sail resulted in a decree, the correct interpretation of which is the main point for determination in this case. Execution of this decree was never taken out, and the deposit of Rs. 45-8-0 is found to have been withdrawn from the Civil Court by some person other than the mortgagee. These transactions took place in the year 1884 A.D. The plaintiff having now attained majority brings a fresh suit for redemption on payment of Rs. 45-8-0. The question is whether this suit is maintainable in view of the fact that the decree of 1884 has been allowed to become time-barred. We were referred in the course of argument to the following rulings of this Court:
Dondh Bahadur Rai v. Tek Narain Rai 21 A. 251, Sita Ram v. Madho Lal 24 A. 44, Rugad Singh v. Sat Narain Singh 27 A. 178.
2. On the essential point of law involved, we think that the general effect of these rulings is very accurately stated by the learned District Judge in the following words:
Where a mortgagor brings a suit for redemption and obtains a conditional decree, but omits to fulfil the conditions imposed upon him, be is not debarred from bringing a second suit for redemption, unless the decree lays down that if he fails to fulfil these conditions the property will be sold or he will be debarred from all right to redeem' We have ourselves in a recent case re-affirmed the law in the above sense. Reliance was placed in the course of argument on certain expressions used by the learned Judges; who decided the case of Rugod Singh v. Sat Narain Singh 27 A. 178. It is necessary to remember what was the precise point for determination in the above case. The equity of redemption in respect of a certain mortgage had been broken up and acquired by different persons at different times and in various proportions. One of these deposited the entire sum due to the mortgagee under Section 83 of the Transfer of Property Act and brought a suit for possession by redemption in respect of the whole mortgaged property. The question before the Court was whether in this same suit a person who had acquired another portion of the equity of redemption could be given a decree in respect of his own share. This was held to be impossible for various reasons and amongst others because the original plaintiff in that case had already satisfied the mortgagees, so that nothing remained due to the latter from the moment the deposit under Section 83 of the Transfer of Properly Act was made. We do not think the learned Judges intended to lay down any such general proposition as that a person making such a deposit is bound to sue the mortgagees simply for possession, and not for possession by redemption, subject to payment, that is to say, to actual delivery to the mortgagee under the orders of the Court of the sum deposited, or such other amount as may be found due to him.
3. As a matter of fact, however, we are not so much concerned with the kind of suit which ought to have been brought by the present plaintiff in 1884 or with the kind of decree which ought to have been passed, as with the suit actually brought and the decree in which it resulted. The suit was not one for possession, pure and simple, it was for possession subject to payment of the sum deposited and to an order by the Court directing the mortgagee to receive the same. The decree passed is an anomalous one and not, in strict conformity with the provisions of the Transfer of Property Act. No doubt, as the learned District Judge remarks, this is due to the fact that the said Act had only recently come into force and the Courts were not fully acquainted with its provisions. No period is fixed within which this sum of Rs. 45-8-0 is to be paid to the mortgagee, and nothing is said as to the possible effect of non-payment. At the same time the decree, as it stands is not one for possession, pure and simple, and cannot be treated as such. The relief sought is thus described: 'That after payment of Rs. 45-8-0 due on account of the mortgage in respect of the plaintiff's share, one-half share in the mortgaged property hereinafter specified be redeemed and possession thereof delivered to the plaintiff.' It is then provided that a decree for redemption of the mortgage is passed in favour of the plaintiff. The mere omission of the Court to fix a time for payment does not seem to us to bring this case outside the principle already laid down.
4. We accordingly dismiss this appeal with costs, including fees on the higher scale.