1. This appeal arises out of a suit for redemption of an usufructuary mortgage. The plaintiff alleged that the mortgage debt, principal and interest, had been satisfied long ago from the usufruct of the property, and that if accounts were taken, a large sum of money would be found due to the plaintiff. He, accordingly, prayed for a declaration that the principal amount had been satisfied, that a decree might be passed awarding possession of the mortgaged property to the plaintiff and directing the defendant to render an account for the period of possession held by him and that a decree might be passed for the amount which may be found due to the plaintiff after adjustment of accounts. The Court of first instance decreed the suit and that decree has been affirmed on appeal.
2. The contention which has been raised in this second appeal is that the claim for recovery of the surplus profits received by the mortgagee was barred under Article 120 of the Indian Limitation Act, and reliance has been planed upon the case of Baboo Lull v. Jamal Ally 9 W.R. 187 (F.B.). In that case, it was held by the Full Bench that when a mortgagor, after a mortgage has been satisfied, sues for the recovery of the property mortgaged, the case comes within Clause 15 of Section (1), Act XIV of 1859, but when he sues for surplus collections which have been received by the mortgagee, the case comes, under Clause 16 of that section. That case was decided under Act XIV of 1859. Clause 15 of Section 1 of Act XIV of 1859 provided a period of sixty years for a suit against a mortgagee of any immoveable property for recovery of the same, and it was pointed out by Sir Barnes Peacock in the referring order that Clause 15 does not say that all suits against the mortgagee are to be so limited; but only suits against a mortgagee of any property, moveable or immoveable, for the recovery of the same and the question before the Court was whether that applied merely to the matter which was pledged, such as land, or to money, which might be found, upon account, to have been received by the mortgagee in excess of the principal and the interest. It was held that the latter claim, that is, the recovery of the surplus profits received by the mortgagee, could not some under Clause 15 but fell under Clause 16, which provided for suits for which no other period of limitation was fixed. Article 148 of the present Limitation Act provides that in a suit for redemption or for recovery of possession of immoveable property mortgaged the period is sixty years. Order XXXIV, Rule (7) of the present Code of Civil Procedure, lays down that if in a suit for redemption, the plaintiff succeeds, the Court shall pass a decree, ordering that an account be taken of what will be due to the defendant for principal and interest on the mortgage, and for his costs of the suit (if any) awarded to him on the day next hereinafter referred to. Rule 9 lays down: 'Not with standing anything hereinbefore contained if it appears upon taking the account referred to in Rule 7 that nothing is due to the defendant or that he has been overpaid, the Court shall pass a decree directing the defendant, if so required, to transfer the property and to pay to the plaintiff the amount which may be found due to him; and the plaintiff shall, if necessary, be put in possession of the mortgaged property.' The claim for recovery of the overpayment, i.e., the surplus profits received by the mortgagee, is a relief which is part of a suit for redemption itself. That being so, the claim for recovery of the surplus profits would be included in a suit for redemption, for which the limitation is provided by Article 148 of the Limitation Act.
3. It is contended on behalf of the appellant that in that view, Article 105 of the Limitation Act would be unnecessary. That Article provides a period of limitation of three years to a suit by a mortgagor, after the mortgage has been satisfied, to recover the surplus collections received by the mortgagee, and the date from which the period runs is when the mortgagor re-enters on the mortgaged property. But there may be cases where the mortgagee has given up the mortgaged property after the mortgage-debt has been satisfied, and the mortgagor has re-entered on the mortgaged property otherwise than by means of a suit for redemption. The mortgagor in such a case has not to bring a suit either for redemption or for possession of the mortgaged property. But he may have to bring a suit for recovery of surplus collections received by the mortgagee, and to such a suit we think Article 105 would apply. That seems to be the view taken by the Allahabad High Court in Ram Din v. Bhup Singh 30 A. 225 : 5 A.L.J. 192 : A.W.N. (1908) (sic).
4. We are also referred to the case of Vinayak v. Dattatraya 26 B. 681 : 4 Bom. L.R. 492. There the mortgagor in a suit for redemption was directed to pay a certain sum to the mortgagee, which was paid and the mortgagor obtained possession. On appeal by the mortgagee the amount was varied and an additional sum was directed to be paid, which was also paid. The mortgages then sued for recovery of the profits between the date on which the mortgagor obtained possession and the date on which he paid the fall amount ordered by the Appellate Court. It was held that the matter was res judicata and the suit was barred, the question raised being one directly arising out of the mortgage transaction which was the subject-matter of the suit for redemption. Bat that question does not arise here as in the present case, the claim for recovery of surplus profits has been made in the suit for redemption itself. In the case of Venkatesh v. Pandurang 1 Bom. L.R. 858 Jenkins, C.J., held that Article 109 of the Limitation Act was applicable to the claim for recovery of the profits reserved by the mortgagee in that case, and that Article 105 had no application. But there, it was not a suit for redemption, and the mortgagor's interest in the equity of redemption had been put an end to, before the suit was brought. Hiving regard to the provisions of Order XXXIV, Rules 7 and 9, which provide expressly for recovery of the surplus profits received by the mortgagee in a suit for redemption, we think that the period prescribed in Article 148 for a suit for redemption will apply to the present case. That being so, the suit is not barred by limitation.
5. The appeal is, accordingly, dismissed with costs.
6. Appeal No. 1464 is dismissed without costs.