1. The plaintiff obtained a preliminary' decree in a redemption suit, which followed the form prescribed by Order XXXIV, rule 7 (b) of the Code of Civil Procedure, and directed that upon payment into Court of the amount declared to be due on or before the appointed day, the defendants should put the plaintiff in possession of specified properties. The plaintiff paid the amount into Court before the appointed day hut the defendants retained possession of the properties, and the passing of a final decree in the suit was delayed for a considerable period owing to unsuccessful appeals by the defendants. The question now argued relates to the claim of the plaintiff that the defendants should account for the profits received by them from the date when they should have delivered possession and that the amount found due should be included in the final decree in the suit.
2. Rule 8 (1) of the above-mentioned order prescribes the form of the decree to be passed when payment has been made by the plaintiff, which includes an order that the defendant shall put the plaintiff in possession of the mortgaged property but does not contain any provision as to rents and profits received by the defendant after the preliminary decree.
3. It is clear, however, from the wording of that rule that the preliminary decree is merely declaratory of the rights of the parties and that the relationship of mortgagor and mortgagor, therefore, still subsists between them, and an incident of that relationship is the liability of the mortgagee to account for any rents and profits received by him, and this is the relief sought in a suit for redemption against a mortgagee in possession. It also appears from the proviso to sub-rule (4) of that rule and rule 10 that the Court can take into consideration events which have happened subsequently to the date of the preliminary decree and that for certain purposes the suit still remains pending.
4. In England it appears that during the period allowed for payment of the mortgage moneys the proper course for the mortgagee is to retain possession but to abstain from receiving profits, and if he receives any profits a fresh account maybe directed and a new day fixed for redemption (Fisher on Mortgages, 6th Edition, page 906). We are of opinion that the liability of the mortgagee to account still subsisted notwithstanding the passing of the preliminary decree and that the Court had power to adjust the rights of the parties by taking a fresh account and embodying its finding in the final decree,
5. The appeal is accordingly dismissed with costs, which will be based on a second appeal.