1. The defendant is the appellant in this Second Appeal.
2. The plaintiff is the heir of the original mortgagor. The defendant is the mortgagee. The mortgage was dated 14th December, 1912, and is evidenced by Ex. I.
3. The first point argued for the appellant before me is that the plaintiff is not entitled to maintain the suit because she parted with the equity of redemption by the sale deed, dated 17th April, 1914, and therefore she is not entitled to redeem. He relies upon Dr. Ghose on The Law of Mortgages in India, page 253, where the case of Kinnaird v. Trollope 39 Ch D 636 is referred to. The case cited has nothing to do with the point now raised. On the other hand, the last sentence of Dr. Ghosh, it should be noted, says, 'But this right cannot be actively asserted, and is in this respect unlike the ordinary right to redeem which is, possessed by every mortgagor,' is against the appellant. It may be that a mortgagor who once parted with his right of redemption absolutely has no right to redeem in England. Mr. Subbaroya Aiyar refers to Jones on! Mortgages, Vol. II, Section 1056. But even Jones says at the end of the paragraph, 'But a mortgagor who has conveyed the land subject to the mortgage and has expressly reserved a lien for the purchase money may redeem by virtue of such interest,' citing two American cases.
4. In the present case part of the consideration was reserved by Ex. V and under Section 55 of the Transfer of Property Act plaintiff has a vendor's lien in respect of a reserved amount so that plaintiff's case comes within the last clause of Section 1056. In my opinion under Section 91 of the Transfer of Property Act a mortgagor is entitled to redeem. The case in Johnes v. Thomas 11 Beaven 501 relates to a case of an assignment of interest during the pendency of a suit and in India is governed by Order 22, Rule 10. That decision cannot help the plaintiff. I think the lower Courts are right in holding that the plaintiff is entitled to redeem.
5. The second point argued for the appellant is that he is entitled to a greater amount than what was found by the Courts below. At the end of one year from the date of the mortgage document, if there is a default of payment of both principal and interest, the mortgagee is entitled to compensation. The lower Courts allowed interest at the rate of 18 per cent per annum of the principal only. If the rate of compensation for default in payment of principal awarded was at a lower rate than 18 per cent. probably there would have been some substance in this argument. But as the mortgagee gets at the enhanced rate of 18 per cent. I think this is sufficient compensation for default in respect of both the principal and the interest. I do no think that the case calls for any modification in my hand in respect of this.
6. The third point argued by the appellant is that there is no misconduct on his part and that he is entitled to costs of the suit. I agree that he is entitled to costs of the suit only before the District Munsif's Court. He has never raised this in the Lower Appellate Court, and though I am willing to modify the decree in his favour I do not think this makes a. difference in the costs of the Second Appeal. I therefore modify the decree of the District Munsif by allowing costs of the suit to the defendant but otherwise I dismiss the Second Appeal with costs.