1. This appeal is directed against a preliminary decree passed in the Court of the Subordinate Judge of Gorakhpur in a suit for redemption. The plaint is dated the 15th of September, 1916 and the suit was suit No. 7 of 1917. It seems that the suit was dismissed originally in the Court of first instance. There was an appeal to this Court and the case was sent back for disposal on the merits, and finally the Subordinate Judge gave judgment on the 5th of October 1922 allowing redemption. In framing their suit for redemption the plaintiffs-mortgagors asked for mesne profits for two periods:
(1) from the date of a certain deposit which they had made in Court under Section 83 of the Transfer of Property Act till the date of the suit; and
(2) from the date of the suit till the date of delivery of possession.
2. The Subordinate Judge was of opinion that the plaintiffs were not entitled to mesne profits for the first period and he based his decision on the ground that the deposit which the plaintiffs bad made was not a proper deposit. At the time that deposit was made one of the mortgagees was a minor and when the plaintiffs lodged the money in Court there was no properly constituted guardian ad item of this mortgagee-defendant. The learned Subordinate Judge, therefore held that this was not a good deposit so as to stop the running of interests and he relied for his decision upon a judgment of this Court in Kannu Mal v. Inderpal Singh AIR 1922 All 147. That case afterwards came up before a Bench in Letters Patent AIR 1923 All 183, in which the law was affirmed as followed by the learned Subordinate Judge. It must be taken, therefore, that there was before the date on which the suit was brought, no valid deposit of the mortgage money under Section 83 of the Transfer of Property Act. So far therefore, the learned Subordinate Judge was right in refusing the claim of the plaintiffs to mesne profits for the period between the date of this deposit and the date on which the suit was brought.
3. We are however, unable to understand why after coming to this finding the learned Subordinate Judge allowed mesne profits to the plaintiffs from the date of the suit till the date of delivery of possession. The judgment of the Subordinate Judge was delivered on the 5th of October 1922. and by the decree which was prepared on the 13th of October 1922, the defendants mortgagees were ordered to vacate possession in favour of the plaintiffs on or before the 5th of March 1923. As a matter of fact the plaintiffs got possession either on the 26th or 28th of October, 1922. The question is whether the Subordinate Judge was justified in this preliminary decree in giving a direction that the plaintiffs should receive mesne profits from the date of the suit till the date of delivery of possession. If the defendants-mortgagees could not be said to have had wrongful possession during this latter period they were certainly not liable to pay mesne profits to the plaintiffs.
4. This question as to whether the defendants were in wrongful possession or not, must be determined on the terms of the mortgage in their favour. It is clear that this mortgage was one of those possessory mortgages in which the defendants were only liable to surrender possession if everything was done by the mortgagors to discharge the mortgage debt by Jeth Sudi Puranmashi. In a mortgage of this kind the mortgagee can only be called upon to vacate possession in favour of the mortgagors if all steps necessary to redemption have been taken so as to enable the mortgagee to vacate possession in the fallow season of Jeth. It follows, therefore, that if in one particular year the mortgagors fail to take all the necessary steps to obtain redemption in the fallow season, the mortgagee is entitled, under the terms of the mortgage, to remain in possession till the fallow season of the following year, and it could not, therefore, be said that where the plaintiffs have made default in taking proceedings for redemption in one year the mortgagee is, for the year which follows, in wrongful possession on the contrary he is in possession in strict accordance with the terms of the mortgage contract.
5. And so in the present case we are unable to see how it can be said that these mortgagees were in wrongful possession from the date of the suit up till the date of delivery of possession. Before the suit was brought no proper and effective steps had been taken by the mortgagors to obtain redemption in the fallow season of Jeth. We are, therefore, of opinion that the direction in the preliminary decree, awarding mesne profits from the date of the suit till the date of delivery of possession, was erroneous.
6. It now appears that, since the passing of this preliminary decree in the Court below and since the date of the filing of this appeal (No. 450 of 1922) a final decree was prepared in the Court of the Subordinate Judge of Gorakhpur. This was drawn up on the 28th of April 1924. The Subordinate Judge by that final decree awarded a sum of Rs. 8,000 odd by way of mesne profits to the plaintiffs. It seems, from what took place before him, that the defendants resisted this claim for mesne profits but the Subordinate Judge naturally felt himself bound by the terms of the preliminary decree.
7. Against this final decree the present defendant-appellant, Gokul Kalwar, filed a first appeal, No. 103 of 1925, objecting to the award of these mesne profits. That appeal, however, was dismissed several months ago for want of prosecution, the reason being that the appellant had failed to deposit the necessary translation and printing charges.
8. It was suggested before us that the result of the dismissal of the plaintiffs' appeal, F.A. No. 103 of 1925, was that we were not at liberty any longer to deal with this appeal (No. 450 of 1922) directed against the preliminary decree. It was argued that the final decree in the mortgage suit had become final as between the parties and that we are not now in a position to pass any decree which would be inconsistent with that final decree. We think, however, this argument must be rejected in view of the ruling of the Full Bench of this Court in Kanhaiya Lal v. Tirbeni Sahai AIR 1914 All 380. Following the principles laid down in that ruling, we are of opinion that there is no obstacle to our entertaining this F.A. No. 450 of 1922 and varying the preliminary decree of the trial Court.
9. The result of all this is that we hold that the preliminary decree was wrong in allowing mesne profits from the date of suit till the date of delivery of possession and we vary that preliminary decree accordingly. The cross-objection which is filed relates to the claim of the plaintiffs for mesne profits for the period between the date of the deposit and the date of the filing of the suit. We have already discussed this matter at length, and in view of the law which has been laid down and according to which there was no good deposit under Section 83 in this case this cross objection must fail. The Subordinate Judge was undoubtedly right in holding that there had been no valid deposit. We allow the appeal, therefore, and vary the preliminary decree by striking out that portion of it which grants the plaintiffs relief in the shape of mesne profits between the date of suit and the date of delivery of possession. We dismiss the cross-objections also. We leave the parties to pay their own costs in this Court.