1. This is a defendant's appeal arising out of a suit for redemption. It appears that on a previous occasion the plaintiff instituted a suit for redemption of this very mortgage and obtained a compromise decree in December 1916. The decree as framed was not in accordance with the compromise and was accordingly subsequently corrected in April 1924. The amended decree stood as follows:
On payment of Rs. 225 to the defendant within one month of the date of the compromise the plaintiff would be entitled to get the property redeemed and put in possession but after the expiry of the fixed period he will be entitled to execute his decree on payment of Rs. 225. Parties shall bear their own costs.' The plaintiff failed to pay the amount in time and failed to apply for execution within three years. He however has brought a second suit for redemption of that property. The Trial Court dismissed the suit holding that the claim was barred by the provisions of Section 11, C.P.C. On appeal the learned Subordinate Judge has taken the contrary view and remanded the case for trial of the other points involved in the case. In our opinion the view taken by the lower Appellate Court is correct. When it is borne in mind that the original mortgage deed was a usufructuary mortgage a suit; for redemption of that mortgage in spite of a default of payment of the mortgage money within the time fixed can be brought. If there had been no compromise the proper course would have been that the property would be sold and the mortgage money realised thereby. By mere lapse of the time fixed, the mortgagee does not become the absolute proprietor of the mortgaged property. The case however was compromised and the decree was passed in terms of the compromise. The compromise nowhere expressly stated that in default of the payment of Rs. 225 within one month the plaintiff's right to redeem would be extinguished or that his exclusive remedy would be to apply for execution. We may note that the decree as originally framed bore a Clause that in default of payment his right to redeem would be extinguished but the Court subsequently corrected this, holding that it was not in accordance with the compromise. It seems to us that when under the compromise the parties did not agree that his right to redeem would be extinguished absolutely he is not prevented from bringing a second suit for redemption, and the mortgagee is still a mortgagee and has not become the absolute proprietor of the property. In support of our view we may refer to the case of Hari Ram v. Indraj 69 Ind. Cas. 167 : 44 A. 730 : 20 A.L.J. 631 : (1922) A.I.R. (A) 377 : 9 O. & A.L.R. 123 which has been followed by the Punjab High Court in the case of Arura v. Bur Singh 84 Ind. Cas. 67 : 5 L. 371 : (1925) A.I.R. (L) 31.
2. We accordingly dismiss this appeal with costs including lees on the higher scale.