1. This first appeal arises out of execution proceedings connected with a decree for possession over 14 annas share of mauza Dharampur. The decree contains a direction that the mesne profits were to be determined in the execution department. As a certain amount of argument in the case has turned upon facts prior to the decree, it is necessary to recapitulate these facts. The decree-holders, who are appellants here brought a suit for redemption and also for mesne profits, arising out of the following circumstances. On the 25th of June 1896, they deposited what they considered to be the mortgage money in Court and called upon the respondents, under Section 83, Transfer of Property Act, to accept the money deposited in full discharge of the amount due on the mortgage and for delivery of the mortgage deed. The respondents did not accept the money so deposited and the appellants had to bring a suit, which they did on the 16th of October 1901. This suit resulted in a decree on the 11th of April 1902, whereby they were given a decree for redemption and as already stated the decree contained a direction that mesne profits were to be ascertained in execution.
2. This decree was confirmed on appeal to the High Court on the 2nd of November 1904. In or about October 1907, the decree-holders filed an application for the ascertainment and award of mesne profits. They assessed the amount due to them at Rs. 15,347-3-10. Amidst other objections which were taken by the respondents, and which we need not consider for the purpose of this appeal, the respondents contended that as the decree-holders had delayed un-necessarily the institution of the suit and the application for mesne profits, the account, which the decree-holders had based upon gross collections, should be based upon actual collections, that the decree-holders were not entitled to interest, and that they were entitled to collection charges. The Court went on the objections with the result that as regards interest it held that there had been undue delay in bringing the suit and the application? and no reasonable explanation had been given for that delay. The decree-holders were, therefore, guilty of laches, and the executing Court refused to allow interest on mesne profits for the period prior to the institution of the suit and granted interest only on the profits past and future after the institution of the suit at the rate of 6 per cent, per annum. It further held that the judgment-debtors were liable to account for actual collections and that the account should not be based upon gross rental. With reference to the collection charges and the Nankar allowance which the judgment-debtors sought to set off against the amount awarded as mesne profits, the Court held that under Section 76, Transfer of Property Act, no such charges were allowed. The judgment-debtors had to account for the gross receipts without any deductions. It further held that there was no satisfactory evidence to prove that the judgment-debtors had paid any Nankar allowance, and on this ground, also refused to make any allowance, on account of the Nankar set up. With reference to the profits of sir and khud kasht lands, which were claimed by the decree-holders, the Court held on the evidence that the sir land remained waste and uncultivated, and as regards the lands held in khud kasht they also remained uncultivated. It, therefore, refused to grant the decree-holders anything on account of the profits of sir and khud kasht lands. It then drew up an account on the basis above set forth, and awarded the decree-holders Rs. 8,163-13-6 as mesne profits. In considering the question of costs, it, while allowing the decree-holders the Court-fees which they had paid and will have to pay as costs, refused to allow any further costs on the ground that the decree-holders had asked for too much under the head of mesne; profits, and had apparently filed and produced superfluous evidence.
3. Both parties were dissatisfied with this order. The decree-holders have appealed and the judgment-debtors have filed objections. The decree-holders again set up their claim (a) for interest on mesne profits, (b) for profits on sir and khud kasht lands, (c) for costs, and (d) for interest on the amount awarded up to the date of realisation. They further contended that as the judgment-debtors were in possession and did not keep' or produce correct accounts of gross realisations, the account of mesne profits should be based on gross rental; and it was for them to prove that they could not have collected more than what they stated they had actually realised. The judgment-debtors set up their claim for costs of collection and for Nankar allowance and for some costs on account of cesses paid by them. At the hearing they withdrew this third last claim and confined themselves to the first two.
4. As regards interest we find ourselves concluded by the definition contained in Section 2, Clause (12) of Act No. V of 1908. There is nothing new in the definition, it simply reproduces the definition given of mesne profits in Section 211 of the old Code, XIV of 1882. The claim for interest must prevail.
5. With reference to the claim for profits as rents of the sir and khud kasht cultivation, we agree with the view taken by the Court below. It is true that the mortgagors are entitled to the gross receipts. The respondents have filed accounts and produced evidence and the lower appellate Court has accepted that evidence. It was for the appellants to show either that the accounts were wrong or that there was negligence. Neither has been proved. This part of the claim, is disallowed.
6. As regards the costs of collection, the provisions of Section 76, Clause (1) of Act No. IV of 1882 make the mortgagee liable to account, for the gross receipt from the mortgaged property from the date of the tender. The order disallowing the costs of collection cannot be interfered with. The decree-holders are entitled to interest on the amount award-, ed as mesne profits up to date of realization. This claim is good and prevails.
7. We now turn to the objections filed by the respondents under Order 41, Rule 22, of Act No. V of 1908. We have already dealt with the first of them. The lower appellate Court finds that there is no satisfactory evidence to prove that the respondents paid any Nankar allowance.
8. The result, therefore, is that we allow this appeal so far that we vary the decree of the Court below and award the appellants interest upon mesne profits from the date of tender of the mortgage money up to date of realization at the rate of six per cent, per annum. We dismiss the objections.
9. The appellants will get the costs of the case and of the appeal in proportion to their success, The costs in this Court are allowed on the higher scale.