Richard Haringtona and Asutosh Mookerjee, JJ.
1. This is an appeal on behalf of the first defendant in a suit to enforce a mortgage security, executed by him on the 19th July 1907 for an advance of Rs. 300. It was agreed between the parties that interest would be paid at the rate of 40 aris of paddy on Rs. 100 annually; in other words, that 120 aris of paddy would be paid upon the principal amount each year. It was farther provided that if interest was not paid in kind, as stipulated, the value Section of the paddy would be taken as Rs. 100. There was, however, no time fixed for repayment in the deed as drawn up; the position, thus, was that the mortgagee could enferce the security whenever he liked and the mortgagor could claim redemption whenever he pleased: Fitzgerald v. Mellersh  1 Ch. 385 Harding v. Tingey (1864) 34 L.J. Ch. 13. Consequently after the deed had been executed, a clause was added to the effect that 'the money would be paid, principal and interest, within one year,' and, this was separately signed by the mortgagor. It is not disputed that on the 24th July 1907 the mortgagor tendered to the mortgagee the principal together with to the interest which had accrued due up to that date. I The mortgagee declined to accept the money, where-upon the sum was deposited in Court. On the 15th March 1909, the mortgagee commenced this action and I claimed to recover the principal sum together with interest up to the date of suit and pendente lite.
2. The Court of first instance overruled this contention and held that the mortgage had been redeemed by the tender of the principal and interest on the 24th July 1907. Upon appeal, the Subordinate Judge has held that the tender was premature and that the plaintiff is entitled to enforce the security.
3. On behalf of the appellant, the mortgagor, it has been argued that upon a true construction of the last clause in the deed, it was open to the mortgagor to redeem the security on the 24th July 1907. On behalf of the respondent it has been contended, upon they authority of the cases of Vadiu v. Vadiu (1880) I.L.R. 5 Bom. 22 and Raghubar v. Budhu (1885) I.L.R. 8 All. 95 that the mortgagor was not entitled to redeem before the expiry of one year from the date of the mortgage. It has farther been argued that the right of redemption and the right of foreclosure are co-extensive; and in support of this proposition, reliance has been placed upon the observation of Lord Kingsdown in the case of Prannath Roy Chowdry v. Rookea Begum (1859) 7 Moo. I.A. 323 and upon the cases of Tirugnana v. Nallatambi (1892) I.L.R. 16 Mad. 486 Husaini Khanam v. Husain Khan (1907) I.L.R. 29 All. 471 Sayad Abdul Hak Sardar v. Gulam Jilani (1895) I.L.R. 20 Bom. 677 and Brown v. Cole (1845) 14 Sim. 427. In oar I opinion, the view taken by the Subordinate Judge is clearly erroneous and cannot be supported.
4. It need not be disputed that unless there is an agreement to the contrary, the right of foreclosure and J the right of redemption must be deemed co-extensive. In each particular instance, therefore, it must be deter1 mined upon the terms of the contract between the', parties whether there is any special provision in the contract which takes the case out of the general rule. No doubt there are observations in the case of Vadiu v. Vadju (1880) I.L.R. 5 Bom. 22 which may be taken to support the contention of the respondent. But the case of Raghubar v. Budhu (1885) I.L.R. 8 All. 95 is clearly distinguishable. There, it is obvious from the judgment, a date had been specifically fixed for redemption and such date was binding equally upon the mortgagor and the mortgagee. The case of Brown v. Cole (1845) 14 Sim. 427 also was obviously a case of this description. Now, in the case before us, the particular covenant upon which both the parties rely is to the effect that the mortgagor shall pay the amount of principal and interest within the term of one year. The mortgagee invites us to treat this covenant as if it provided that the mortgagor was not to pay the amount of principal and interest before the expiry of one year. It is in our opinion impossible to construe it in this way. It is fairly clear that this particular clause was inserted for the benefit of the mortgagor, so that lie might be at liberty to pay the principal with interest before the expiry of one year: Rose Animal v. Rajarallinam (1898) I.L.R. 23 Mad. 33. In fact, the present case falls within the class of cases in which the mortgage is payable before a certain day, and not within the class where a day is fixed for the payment of the debt. In this view, it is clear that this appeal must be allowed, the decree of the Court below set aside and that of the Court of first instance restored with costs both here and in the Court of appeal below.