1. This is an application in revision against the appellate judgment of the Civil Judge of Cawnpore, dated 17th December 1937. Umrao Begam, opposite party, made an application under Section 12, Agriculturists' Relief Act, to redeem a usufructuary mortgage made in favour of the applicant Sheo Charan Lai. The principal sum secured by the mortgage was Rs. 650 and there was a covenant that there would be no accounting between the parties and that the mortgage would be redeemed on payment of the principal sum only. The mortgagor made a deposit of Rupees 10 when applying for redemption and alleged that the balance of the mortgage money had been paid off from the usufruct of the property mortgaged. The mortgagee contended that in view of Section 77, T.P. Act, it was not open to the mortgagor to ask for re-opening of the accounts. The trial Court of the Munsif held that accounts could be re-opened from 1st January 1930 under the provisions of Section 30, Agriculturists' Relief Act, and on going into the accounts it found that the mortgagee had been overpaid to the extent of about Rs. 226. It held however that the mortgagor was not entitled to a return of this sum. In the result the learned Munsif allowed redemption without payment of any sum of money. The mortgagee Sheo Charan Lal then appealed to the Civil Judge and the Civil Judge held that the mortgagor was entitled to a decree for refund of the money realized in excess by the mortgagee. Accordingly the lower Appellate Court gave a decree to the mortgagor for Rs. 226.
2. In this revision it is contended before me that in the first place the order of the Court below directing a refund of the excess sum said to have been realized as interest by the mortgagee is in the teeth of Clause (4), Section 30, Agriculturists' Relief Act, and is wrong. This contention must be accepted. The provisions of Section 30, Clause (4) are clear and explicit and they lay down that nothing in that Section shall be deemed to entitle a debtor to claim refund of any part of the interest already paid by him.
3. The second contention is that in view of Section 77, T.P. Act, the lower Courts had no power to re-open the accounts. As to this it may be said in reply that it has been held by, a Bench of this Court that accounts can be re-opened under Section 33, Agriculturists' Relief Act, even in the case of a usufructuary mortgage: vide Dharam Singh v. Bishan Sarup : AIR1938All1 . Section 30 of the Act clearly provides that notwithstanding any contract to the contrary between the debtor and the creditor, no debtor shall be liable to pay interest on a loan taken before the Act came into force at a rate higher than that specified in Schedule 3, for the period from 1st January 1930, till a date to be fixed by the Local Government. There can be no doubt that a mortgagor is included in the expression 'debtor.' Mortgage money is a 'loan' and the definition of 'interest' given in the Act as including 'the return to be made over and above what was actually lent' includes the usufruct which a usufructuary mortgagee takes from the mortgaged property in lieu of interest on the mortgage money. The opening words 'notwithstanding anything in any contract to the contrary' clearly imply that accounts can and must be reopened between the mortgagor and the mortgagee in spite of the fact that they might have agreed that there shall be no accounting between them. For these reasons, I have no doubt in my mind that the lower Courts were right in applying Section 30, Clause (1) to the mortgage in question and in re-opening the accounts.
4. In the result this revision is accepted in part and it is ordered that while the mortgagor will get back the Rs. 10 deposited by her, she will have no refund from the applicant mortgagee. In the circumstances of the case the parties are ordered to bear their own costs throughout.