MUNSHI SINGH Vs. NARAIN PRASAD SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiffs from a suit brought by them for redemption of a usufructuary mortgage bond dated 7/9/28 executed by the mortgagers, who were defendants second party to the suit, in favour of the mortgagee, who was defendant first party, for a sum of Rs. 1100. The plaintiffs are purchasers of the equity of redemption from the mortgagors defendants second party by virtue of a registered document dated 21/5/1945.

(2.) The plaintiffs' suit has been decreed by both the Courts below, but as far as the question of 'mesne' profits is concerned, the first Court allowed 'mesne' profits from the date of the deposit of the mortgage money by the plaintiffs under Section 83, T. P. Act. The lower appellate Court, however, has allowed it not from the date of the deposit, but from the nest year, on the ground that the notice of the deposit was served on the mortgagee not in Baisakh, but in Jeth of the year of deposit.

(3.) The plaintiffs' case was that they tender-ed the money to the mortgagee, but he did not accept it, and, as such, they deposited the amount under Section 83, T. P. Act, on 28th 'Baisakh 1352 Fs., corresponding to 25/5/1945. A notice of this deposit was served on the mortgagee defendant in the month of Jeth. The plaintiffs, therefore, brought the suit for redemption, and, also claimed mesne profits from the date of the deposit, on the ground that the possession of the mortgagee since the date of the deposit had become that of a trespasser, because in spite of the amount having been deposited, the mortgagee refused to take out the money and give up possession to the plaintiffs and, therefore, they were entitled to 'mesne' profits since the date of the deposit.