R.C. Mitter, J.
1. This rule has been obtained by the defendant in a suit instituted in the Court of Small Causes at Patiya for recovery of mesne profits from November 1931 to November 1934. This suit was filed on 5th December 1934. The question involved in this Rule is whether this claim is maintainable in law. On 15th April 1917 Nobin Chandra Chowdhury and three other persons, who may be called the Chowdhurys, executed a mortgage for a sum of Rs. 100 in favour of Tarini Charan Dass (since deceased), the father of the petitioner. The mortgagee was given possession, the stipulation in the bond being that the usufruct of the property mortgaged would be taken in lieu of and in complete satisfaction of the claim for interest. Tarini accordingly went into possession and remained in possession of the mortgaged lands till November 1934. The opposite party, Sarada Charan Chowdhury, purchased in execution of money decree the interest of the Chowdhurys in the mortgaged land, and deposited in Court the mortgagee's dues on 12th December 1930 under the provisions of Section 83, T. P. Act. Notice of the deposit was served on Tarini Charan Das, the mortgagee, by the Court on 25th December 1930. Tarini did not withdraw the money nor did he deliver possession to the opposite party.
2. Thereafter the opposite party instituted a suit against Tarini Charan Chowdhury being No. 200 of 1932. In the suit he prayed for a declaration that by his aforesaid deposit the mortgage had stood redeemed, for recovery of possession of the mortgaged property and for a reconveyance from the mortgagee. The Chowdhurys did not appear but Tarini appeared and contested the suit. Besides challenging the title of the opposite party he pleaded that the plaintiff in the suit was not entitled to any of the reliefs claimed by him without paying him money due on another simple mortgage executed in his favour by the Chowdhurys for Rupees 2,500. The pleas taken by Tarini were overruled by the learned Munsif. The material part of the decree passed by the Munsif is as follows:
That it be declared that the plaintiff has the right to redeem and he do get khas possession; that defendant 1 (Tarini) do execute within three months from this date a reconveyance in favour of the plaintiff.
3. Tarini preferred an appeal (No. 66 of 1934). One passage in the judgment-pronounced in the said appeal is material and in my judgment the learned Small Cause Court has gone wrong by misjudging the effect of the said passage in the said judgment. The said passage is as follows:
I have been asked by the defendant-appellant to give him six months' time more. In view of my finding that the plaintiff is not liable to redeem the simple mortgage for Rs. 2,500 for this and other lands and defendant may be put to further trouble, he may be allowed to take the paddy grown on the land by him; so I allow him time till Aughrayan 1341 B.S. (November 1934). The suit is decreed with costs. The mortgage is declared to be redeemed by the deposit and notice. Plaintiff do get khas possession of the mortgaged property by the end of Agrahayan 1341 B.S.
4. These observations were made by the Subordinate Judge in dealing with the question as to what relief the plaintiff was entitled to get. The mortgagee gave up possession by the end of Agrahayan 1341 to Sarada Charan Chowdhury, who has instituted the present suit against the heir of Tarini. In the plaint he states that he became entitled to mesne profits from the date of service of the notice of deposit under Section 83, T. P. Act, on Tarini till he got back possession and as his claim for mesne profits for about one year has been barred by limitation he is suing for mesne profits from November 1931. His suit has been decreed by the Small Cause Court Judge. The defendant complains of this decree and his ground is that the decree is not sustainable at all. The reasons given by the learned Small Cause Court Judge for overruling the aforesaid defence may be summarised thus: (i) Order 2, Rule 2, Civil P. C., is not a bar, taking Suit No. 200 of 1932 to be a suit for redemption, as a mortgagor had only the right to get possession of the lands from a usufructuary mortgage after a decree passed under Order 34, Rule 7, and that the plaintiff's cause of action for mesne profits did not arise before the institution of the said suit but thereafter. (ii) that the possession of the mortgagee became wrong ful from the date of the notice on him of the deposit made under Section 83, T. P. Act, and the plaintiff is accordingly entitled to get mesne profits from that date; and (iii) that at the request of the mortgagee the Court gave him time and allowed him to remain on the land till Agrahayan 1341 B.S. and to reap the paddy grown by him, and that the order of the appellate Court (in appeal No. 66 of 1934) implying that all the profits till 1341 B.S. is to be taken by the mortgagee is 'ultra vires and without jurisdiction' as that ' Court could not override the clear provisions of law.'. In my judgment all the reasons given by the learned Small Cause Court Judge are wrong and the Rule must be made absolute. Where a mortgagee resists the right of the mortgagor to get a release of the mortgaged property and give up possession, where he is in possession, the suit which the mortgagor has to institute is a suit for redemption.
5. It would still be a suit for redemption, if the tender made by the mortgagor has been refused or if he deposits the money under Section 83, T. P. Act, and the mortgagee has refused to withdraw the same, or if the mortgagee being in possession, the amount of the usufruct received by him has satisfied his dues or where by such receipts he had overpaid himself. If a suit for redemption is brought the accounts must be gone into in ordinary cases. If any money is found due to the mortgagee on such accounting a preliminary decree must be made directing the mortgagor to pay the same 'within a certain time, and then on the passing of the day of default, a final decree whether for redemption, foreclosure, or sale must be made, according as the money found due to the mortgagee is paid by the mortgagor or not. The date of default fixed in the preliminary decree can be extended by the Court. Where on an account being taken no money is found to the mortgagee or where the mortgagee has been overpaid or has overpaid himself from the usufruct, in the case where he was in possession, two decrees, namely the preliminary and the final decree, has not to be passed, but there would be one decree, a final one, in terms of Order 34, Rule 9 of the Code. The intention of the legislature is that a suit for redemption must include the entire accounts between the parties in relation to the mortgage up to the date of default mentioned in the preliminary decree. Where no preliminary decree has to be passed the entire account up to the date of the final decree passed in the suit for redemption must be taken. The claim of the mortgagor for overpayments to the mortgagee or excess profits received by the mortagee up to these dates mentioned above must be included in the suit for redempion, and if he does not include the said claim he would bedebarred from claiming the same in a subsequent suit. This rule is deducible from a series of cases, namely Kaehu v. Lakshman Singh (1901) 25 Bom 115; Vinayak v. Dattatraya (1902) 26 Bom 661; Satyabadi Behara v. Harabati (1907) 34 Cal 223; Rukhminibai v. Venkatesh (1907) 31 Bom 527; Kashi Pershad v. Bajrang Prasad (1907) 30 All 36; Satyabadi Behara v. Harabati (1907) 34 Cal 223; Sahari Dutt v. Ainuddy (1910) 14 C W N 1001; Ma Nyo v. Maung Ba Bu 1925 Rang 13 and other cases reviewed in the case of Abu Jaffar v. Raghoindra Partab Shahi 1926 Oudh 113 The rule has been based in these decisions on one of two principles, namely (i) that the mortgagor might and ought to have included such a Claim in his suit for redemption, and accordingly Expln. 4 to Section 2, Civil P. C., bars a subsequent suit for the same; (ii) that Order 2, Rule 2 of the Code bars such a suit as the liability of the mortgagee to account for such payments or profits is a statutory liability attached to the mortgage contract.
6. These principles in my judgment also apply to the case where the mortgagor has sued the mortgagee even after a valid tender made by the former has been refused by the latter or a deposit made by the former under Section 83, T. P. Act, has not been accepted by the latter. In both tches cases the relation of the mortgagor and mortgagee still subsists after the tender or deposit. The mortgagee does not become a trespasser from the moment of the tender, or from the moment that he receives the notice of the depsit and the analogy of those classes of cases, where it has been held that a suit for mesne profits against a trespasser lies, even after a suit for possession, for a period anterior to the date of the institution of the suit for possession, does not apply: Satyabadi Behara v. Harabati (1907) 34 Cal 223. After the tender or deposit the mortgagee still continues as a mortgagee if he is in possession; he does not become a trespasser. The only effect is that interest ceases to run and that a heavier burden in the matter of accounts is thrown on the mortgagee: Sub-section 84 and 76, Clause (b), T. P. Act. For these reasons, I hold that the first and second reasons given by the learned Small Cause Court Judge are wrong.
7. The third reason given by the learned Judge also does not appeal to me, In the passage of the judgment pronounced by the learned Subordinate Judge in Appeal No. 66 of 1934 which I have qouted above, there is a clear direction that the mortgagee is to have the profits of the land up to Augrahayan 1341 B.S., without any question of his being made liable to account for the same in future. I am not convinced that therein the learned Subordinate Judge had violated any clear provision of law. He had jurisdiction to settle the rights of the parties in that suit and has settled it in the aforesaid manner. Even if he had gone wrong on a point of law, which I do not say he has, his decision on the point is final between the parties. It is now settled by a Full Bench of this Court and by the Judicial Committee of the Privy Council that an erroneous decision on a point of law is res judieata between the parties: Tarini Charan v. Kedar Nath 1928 Cal 777; Bindeswari Charan Singh v. Thakur Bagoswari Charan Singh 1936 P C 46. For this reason, I make this Rule absolute and discharge the decree passed by the Court below. The result is that the plaintiff's suit is dismissed. The defendant must have his costs of the Court below and of this Court. Hearing fee assessed at one gold mohur.