1. The facts of this case briefly are these : The original plaintiff who is the appellant before this Court, viz., Sheodarshan Singh brought a suit for redemption in the Court of the Munsif of Ballia. He obtained a decree on the 22nd April, 1919, on condition of payment of Rs. 1,747-8-6 for principal mortgage money and interest and Rs. 69-2-0 costs. In all he was declared entitled to obtain possession of the property on payment of Rs. 1,81610-6. This sum was deposited in Court. The mortgagees however did not acquiesce in this decree and appealed. In the meanwhile the final decree wag prepared on the 26th of June, 1919, in accordance with the preliminary decree passed by the first Court. The plaintiff obtained delivery of possession on the 15th of July, 1919. The appellate Court by its decree dated the 2nd of December, 1920, varied the decree of the Court of first instance and the main question to be decided in this appeal is what is the true interpretation of that decree.
2. The appellate Court directed that a further sum ought to be paid to the defendants in the case and extended the time for payment up to the 2nd of March, 1921. Within this period, it is common ground, a farther sum of Rs. 175 was paid by the plaintiff. The question is whether he ought to have paid as a condition precedent to his obtaining delivery of possession a further sum of Rs. 45-6-0.
3. The defendants alleging that the total sum payable to them had not been paid within the time allowed by the Court of appeal came to the Court asking for re-delivery of possession to them and they also asked for mesne profits. Possession has not so far been re-delivered to the mortgagees. But they have been awarded Rs. 800 as mesne profits for two years. This period of two years is the period between the 15th of July, 1919, the date of the delivery of possession and the 18th of June, 1921, the date of the defendants' application for restitution.
4. It is contended on behalf of the plaintiff-appellant who has appealed against the decree of the lower Court directing him to pay mesne profits that he has really complied with the terms of the decree. His contention is that the decree did not make the payment of extra costs with which he was saddled a condition precedent to redemption. In the case of Amina Bibi v. Ram Shankar (1919) 41 All. 473, two learned Judges of this Court discussed the question how far the costs awarded, by a Court of appeal were a charge on the property mortgaged. The learned judges, as I read those judgments, were of opinion that it was open to the appellate Court either to pass a personal decree against the unsuccessful party or to make the costs payable out of the mortgaged property. The learned Judges thought that in every case it was a matter of interpretation what was intended by the appellate Court. Mr. Justice Piggott said in his separate judgment in the case Amina Bibi v. Ram Shankar (1919) 41 All. 473. 'If these propositions of law are sound the question...resolves itself into one of the interpretation of the decree actually passed by the appellate Court.' I am of the same opinion as those learned Judges. It is entirely a matter of interpretation of a decree as to whether the appellate Court in a particular case has made the costs payable out of the mortgaged property or by the mortgagor personally.
5. Coming to the particular decree before us, we find that the appellate Court said that it was increasing the amount of the money payable to the mortgagees by a sum of Rs. 175. Then it said that a total sum of Rs. 1,991-10-6 was payable by the plaintiff to the defendants on or before the 2nd of March, 1921. After having said so much, the Court went on to say that certain costs were payable by one party to another. After making these statements the decree went on to say if the plaintiff paid the 'sum aforesaid' within the 2nd of March, 1921, etc., etc. Now the question is whether the decree meant that over and above the sum of Rs. 1,991-10-6 mentioned in a lump sum the sums mentioned as costs in the cause were also to be paid as a condition precedent to redemption. As I read the decree it was not the intention of the Court to make the costs as stated in the decree a charge on the property. My reasons are two fold. In the beginning of the decree the Court distinctly said that the amount payable to the mortgagees was being increased by a sum of Rs. 175. That was very definite. Then the Court fixed the amount payable by the mortgagees at a definite sum. Further, I am confirmed in my view from this fact that the sum of Rs. 1,991-10-6 already included the sum of Rs. 69-2-0 costs awarded to the mortgagees against the mortgagor by the Court of first instance. If we read the decree as awarding to the mortgagees not only the sum of Rs. 1,991-10-6 but also the amounts of costs mentioned therein we are forced to the conclusion that the appellate Court meant that the sum of Rs. 69-2-0 costs awarded by the Court of first instance to the mortgagees was to be paid twice over. It is nobody's contention that this was to be paid twice over. All that is contended for on behalf of the respondents is that after an adjustment, of the costs a sum of Rs. 45-6-0 would stand decreed to the mortgagees on account of costs and this additional sum had to be paid. But it does not follow that the sum of Rs. 45-6-0 was a charge on the property. I am, therefore, forced to the conclusion that the appellate Court's decree meant this only and nothing more than this that redemption was to be had on payment of this sum, viz., Rs. 1,991-10-6 if the said sum was paid within the 2nd of March, 1921.
6. In this view the mortgagor was right in-paying only the sum of Rs. 1,991-10-6 within the 2nd of March, 1921.
7. The result of my view is that the mortgagees are entitled to mesne profits only for the period between the 15th of July, 1919, and the 2nd of March, 1921. It was during this period only that the mortgagor's possession was unlawful and it was during this period that the mortgagees should have continued in possession.
8. I would, therefore, remand an issue to the appellate Court to find out the amount of mesne profits for this period.
9. I greatly regret that I am unable to agree with the judgment just delivered. In my opinion the appellant has no case and his appeal should be dismissed.
10. I would note at the outset that the point on which my learned brother would allow the appeal in part was not originally taken by the appellant in argument at all. The appellant's learned Counsel stated in answer to a question by the Court that he was obliged to concede that the interest awarded by the decree was legally a charge on the mortgaged property. He contended that the appellant had been misled by the form in which the decree was passed and therefore mesne profits should not have been awarded against him.
11. The decree was one under Order 34, Rule 7. Under that decree the Court is directed to take an account of what is due to the defendant for principal and interest on the mortgage and for his costs of the suit if awarded to him. The form of decree prescribed by the Code distinctly contemplates that the costs of the suit shall be a charge on the mortgaged property and shall be recoverable as such. The decree in this case stated the sum of Rs. 1,991-10-6 to be due upto 2nd March, 1921, then states the further sum which was due on account of costs and finally directs that if the aforesaid sum is not paid by a date three months in advance the property was to be sold.
12. The operative part of the decree clearly, therefore, directs that the property was to be sold unless the entire sum was paid into Court. It is quite true, as has been pointed out by the appellant, that some portion of the costs has been included twice over, being included both in the sum of Rs. 1,991 and in the sum specified as being due on account of costs in addition to this. This clerical mistake, for it is nothing more, does not in my mind affect the merits of the appeal. If anything it makes the case of the appellant worse, for if the decree be read literally and not in connection with the judgment, the deficiency in the amount deposited by him would be appreciably greater than it has been found by the Court below to be.
13 Even if it be possible to read the words 'the aforesaid sum' as referring only to the sum of Rs. 1,991, that construction of the decree should be adopted which is in accordance with the law as laid down under Order 34, Rule 7, and the universal practice of the Courts in such oases which direct that the costs of the suit shall form part of the sum payable in order to effect redemption. (Even costs incurred after the decree can be recovered by the mortgagee at the time of redemption under Order 34, Rule 10). This was decided in a reasoned judgment in Dhambar Singh v. Kalyan Singh (1918) 40 All. 109, where it was, held that though the order of the Court merely directed the respondent to pay to; the appellant a certain sum incurred on account of costs, the effect of the decree was to make this sum legally recoverable from the mortgaged property. It is suggested that this ruling has not been followed in Amina Bibi v. Ram shankar Misra (1919) 41 All. 473. I do not so read this case. The point in that case was not whether the amount could be recovered from the mortgaged property but whether the decree-holder had any remedy to recover the amount of costs as a personal liability from the decree-holder. The learned Judges held that in the case before them he had such a remedy. They carefully guarded themselves from suggesting that the case of Dambar Singh v. Kalyan Singh (1918) 40 All. 109, had been wrongly decided, Mr. Justice Walsh says in the course of his judgment:
The ordinary rule in equity is that a mortgagee is entitled to recover against a mortgagor all the costs and expanses of maintaining or enforcing the security provided ha acts reasonably and according to law, and further to add them to his security, that is to say, he is given both remedies, the personal remedy against the debtor and, the remedy in specie against this security.
14. Mr. Justice Piggott in his concurring judgment says.
In a suit on a mortgage no one denies that the plaintiff is entitled to add to his mortgage debt and to recover as against the mortgage security any costs to which he may be pub in enforcing the said security.... As regards the costs incurred in prosecuting or defending an appeal against a preliminary decree for sale, I think some learned Judges of this Court have used language suggesting a doubt as to whether such cases are covered at all by the provisions of Order 34, Rule 10, above-mentioned, but I do not undertand that the general principle as to the right of the mortgagee to claim to have these costs included in the final decree for sale against the property, where such final decree is sought and obtained after the decision of the appeal in which those costs were incurred, has been doubted.
15. He held that at the same time the Court had consistently held that it was in the discretion of an appellate Court to award the costs also as a personal money decree. The appellant, therefore, in my judgment failed to deposit the full amount required by the decree and was, therefore, act entitled to recover possession of the (property. His attention was called on 13th May, 1921, by the decree holders to the fact that the sum paid in was insufficient but he did not up to the time when the suit was instituted, or indeed up to the present time, make any attempt to make good the deficiency. I would, therefore, dismiss the appeal with costs including in this Court fees, on the higher scale.
16. The result is that the appeal is dismissed with costs which will include in this Court, Counsel's fees on the higher scale.