1. The facts which give rise to this appeal are simple. The shop in dispute belonged to a Pandaram family. It was mortgaged to one Saradambal in 1905 under Ex. 1. It was then attached by a simple money decree-holder in execution of the decree he got against the Pandarams. A decree was obtained by a third person against the Pandarams and that decree was assigned to defendant 1 in the present suit. He purchased the property in execution of the decree in 1907 and got possession. In 1910 a suit for partition was filed by one of the members of the Pandaram family, O.S. 45 of 1910, in the Subordinate Judge's Court against the other members of the family, and the present; defendant 1 was defendant 10 in that suit. One of the items of property of which the partition was sought was this shop. The plaintiff's case was that the purchase by the present defendant 1, (defendant 10 in that suit) was benami for the family. In the meantime the present defendant 1 discharged the mortgage debt due to Saradambal. In the partition suit it was held that the plaintiff was entitled to a share but as defendant 10 (the present defendant 1) had discharged the mortgage, he was entitled to Rs. 1,852-8-2 due to him. There was a preliminary decree and a final decree in which it was directed that the property should be divided into three shares subject to the payment of Rs. 1,852-8-2. and interest thereon. Then the plaintiff prayed for delivery of possession. This charge was set up as a ground for resisting the delivery. The Judge held that on account of this charge possession could not be given except on payment of Rs. 1852 and interest. This suit is filed to get possession.
2. Defendant 5 in this suit, a brother of defendant 1 was not a party to the previous suit, and he raised some objections. A decree has been passed directing delivery of possession on payment of Rs. 1,620 and subsequent interest. It seems to us that on the facts proved in this case and the fact that defendant 5 was a brother of defendant 1 there can be no question of adverse possession.
3. The next point is that the present suit is barred under Section 47 as the matter was one relating to the execution of the partition decree. We find it difficult to see how in the absence of any decree in that suit for payment a mere declaration that the property is subject to a charge and that possession could not be given until that amount is paid would entitle parties to work out their mortgage rights in execution of that decree. In some partition suits, where the property is subject to a charge or mortgage, the parties are not in a position to pay before the final decree is passed. A mere declaration that the property is subject to a charge by itself would not give the right to work out in execution the mortgage rights. We do not think that the present suit is barred by Section 47. We might also state that this objection was not taken when the suit was tried. If it had been taken at that time it would have been open under Sub-section 2 to the Court to treat the suit as a proceeding in execution and work out the rights of the parties if by that time the claim was not barred, so that there was no technical objection to that course having been followed if objection was taken in time. However, it is unnecessary to pursue that matter further, for, even if we thought that Section 47 applied, we would be inclined to send this case back and not dismiss the suit.
4. The only substantial question that remains is, what is the amount due on redemption. The mortgage states that out of the income of the property Rs. 127-8-0 should be appropriated towards interest and that after paying the revenue the balance (Michavaram) should be paid to the mortgagors. It has been found by the Subordinate Judge that the revenue is Rs 20-7-6 which sum would ordinarily be payable every year by the mortgagor. It has also been found that Rs. 352-8-2 was paid in addition to the amount of Rs. 1,500 and in fact in the partition suit the amount was fixed at Rs. 1,852-8-2. It seems to us that the amount payable will be Rs. 1,852 plus taxes paid every year from 1913 up to the date of payment, which will be Rs. 259-3-8. The decree of the lower Court will be modified by declaring the amount payable as Rs. 1,928-13-0 within 11th August 1927 instead of the amount awarded by the Subordinate Judge.
5. As regards C. M. A. 48 of 1925 which is an appeal against the order of the Subordinate Judge refusing to extend the time for payment, it appears that an interim stay was obtained by the defendant which was dissolved by 'the High Court on 10th October after the period fixed. We think that this is a fit case for extension of time. But as we have already given time for payment of the money in the appeal we think it is unnecessary to pass any order on this Civil Miscellaneous Appeal. As regards the appeal the appellant will pay respondent proportionate costs and receive the costs on the difference between the decree amount in the lower Court and this Court and in Civil Miscellaneous-Appeal. They will bear their own-costs. The vakil's fee and Court-fee-will be calculated on Rs. 1852 in appeal. The memoradum of objections is not pressed. It is dismissed. No costs. No order necessary on C.R.P. 56 of 1925.