A RAMA RAO Vs. VENKATARAMANACHAR

JUDGEMENT

(1.) This is a revision petition against the order passed by the Subordinate Judge, Mysore, on I. A, No. VI in O. S. No. 70 of 1944-45. The petitioner filed the suit for redemption against respondents 1 to 3. He deposited Rs. 2700 being the amount due on the suit mortgages. A decree was passed directing redemption and allowing costs and mesne profits. It was ordered that the mesne profits should be ascertained on an application filed for the purpose. Such an application has been filed. Meanwhile, respondent 4 obtained a decree is O. S. No. 85 of 1946-47 against respondents 2 and 3 and attached two-thirds of the mortgage amount due to them under the decree. The petitioner filed the application, I. A. No. VI, referred to above, contending that the amount due to his judgment-debtors is what remains after deducting costs and mesne profits due to him oat of the amount deposited by him for redemption. The learned Subordinate Judge dismissed the application stating that since the means profits have not yet been ascertained, the same cannot be deducted out of the amount due to the judgment-debtors.

(2.) The point that will have to be noticed in a case of this kind is that in the course of the same suit not only has the amount due to the mortgagee by the mortgagor to be determined under Order 34, Rule 7, Civil P. C., but also the amount of coats as well as the mesne profits due to the mortgagor on account of the failure of the mortgagee to allow the redemption when the mortgagor offered to redeem the property. The question that arises for consideration is whether the mortgagee is entitled to recover the entire amount determined to be due to him under Order 34, Rule 7, Civil P. C., without his giving deduction to what is due by him towards costs and mesne profits. In this connection, the provisions of Order 21, Rule 19, Civil P. C., deserve some consideration. According to this rule, where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then if the two sums are equal, satisfaction for both shall be entered upon the decree, and if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only as remains after deducting the smaller sum and satisfaction for the smaller sum shall be entered upon the decree. It is however rightly contended that in a case of this kind, it cannot be said that there is a decree for recovery of money in favour of the mortgagee as he cannot recover the mortgage amount by executing the decree. If the mortgage amount is not deposited within the time fixed, the mortgagor will not be entitled to redemption. The only point for consideration, therefore, is whether the principle laid down in Order 21, Rule 19, Civil P. C , can be extended by analogy to suits for redemption in which the mortgagee becomes entitled to a certain sum of money and is at the same time under that decree liable to pay costs and mesne profits.

(3.) In the decision reported in Sidu v. Bali, 17 Bom. 32, it will be noticed that the costs due to the mortgagor were allowed to be adjusted out of the mortgage amount deposited in the suit filed for redemption. Following the decision in Brijnath Dass v. Jugger Nath 4 Cal. 742 : (4 C L. R. 122), it was observed in the aforesaid case that Section 221, Civil P. C., 1882, is applicable to a case of this description and that