James, J.This appeal arises out of a suit for redemption of a usufructuary mortgage of 10th April 1863. The sum advanced was Rs. 400 in consideration of which a thika was given at an annual rent of Rs. 35-5-0. Rupees 30 out of that sum was set aside for the mortgagee as interest at 7 per cent, per annum on the money advanced; Rupees 4 was set aside for collection charges and the balance of Rs. 1-5-0 was to be payable by the mortgagee to the mortgagor. This haqazri had never been paid since the execution of the mortgage. The plaintiffs had prayed for an account, praying that if the account should show a balance in their favour, a decree should be given entitling them to realize that amount on payment of the requisite court-fee. The Munsif found that the mortgage had actually been redeemed owing to the defendants failure to pay the haqazri as it fell due, and that a sum of Rs. 924-13-0 was payable to the plaintiffs. He arrived at this result by treating the haqazri as if it had been realized by the plaintiffs, reducing the principal amount due on the mortgage so long as the account showed that anything did remain due on the mortgage, and henceforth he treated the mortgagee as liable to pay the full amount of Rs. 31-5-0 reserved by the mortgage deed, since the mortgagee was no longer entitled to any interest because the principal had already been swallowed up by the accumulating haqazri.

2. On appeal, the District Judge modified the decree of the Munsif, merely calculating the arrears of haqazri without reducing the amount of the principal money due year by year; and calculating by this method he found that a sum of Rs. 90-15-4 was due to the defendants. The plaintiffs have appealed from that decision; and a cross-objection has been preferred by certain respondents who held some mortgages of the property. The learned District Judge in adopting his method of calculation, considered that he was bound by the decision in Muhammad Sadiq v. Harakh Narain A.I.R (1936) Pat. 583, but as Mr. B.N. Mitter points out on behalf of the appellants, in that case the rate of interest to which the mortgagee was entitled was not specified in the bond.

3. The learned Chief Justice dealing with the zarpeshgi deed in that case, treated the mention of haqazri as fixed and consolidated jama as if that were a fiction; but the present deed is a thika zarpeshgi lease in the ordinary form, whereby the mortgagee obtains a thika lease at a certain reserved rent, retaining for himself a fixed amount of the rent as interest upon the zarpeshgi money. The transaction is a transaction both of lease and of mortgage; but it certainly is a usufructuary mortgage, because by the deed the mortgagee retains the thika property as security for the repayment of the four hundred rupees advanced. The deeds recite that the mortgagee is entitled to interest at 7 per cent, per annum on the amount advanced and that he is liable to pay Rupee 1.5-0 annually to the mortgagor. When at the earliest period of the mortgage the mortgagee failed to pay that amount, the amount due to the mortgagee was reduced by Rs. 1-5-0 and in the following year the amount of interest due on that advance at 7 per cent, was slightly reduced, and in the end the liability of Rs. 400 was by this lease completely wiped out. We consider that the learned. Munsif acted rightly in thus making the account on the principle laid down in Section 76 (h), T.P. Act, and that in a case like this, where the rate of interest is actually specified, the method of accounting adopted in Muhammad Sadiq v. Harakh Narain A.I.R (1936) Pat. 583 would not be properly adopted.

4. The learned advocate for the respondents suggests that the plaintiffs who are successors of the original malikanadars are entitled only to claim rent from the date of the assignment, citing the decision in Ganesh Lal v. Shamnarain (1881) 6 Cal. 213. In that case the zarpeshgidars whose possession has been obstructed had obtained a decree for recovery of possession with mesne profits. Subsequently their zarpeshgi interest had been sold; and the purchaser on the strength of that sought to execute the decree for mesne profits. The Privy Council held that this could not be done, because the purchaser had not purchased the decree but merely the existing rights under the zarpeshgi. In the present case the plaintiffs acquired the rights of the mortgagor under the mortgage deed of 1863 whatever they might be, including the right to claim an account for the whole period of occupation in a suit for redemption. The learned advocate for respondents 2, 3 and 4, Gokhul Pande, Ram Brich Mahto and Ramsakhi Mahto, is on stronger ground when he claims that these respondents should not be liable to account on the basis of the original zarpeshgi deed.

5. Gokhul Pande obtained a sub mortgage in 1911 and Earn Brich Mahto and Ramsakhi Mahto obtained a sub-mortgage in 1912, each of a portion of the area covered by the original zarpeshgi. The leases which they obtained were in the thika zarpeshgi form; but if they had been ordinary leases and not mortgages, the plaintiffs, far from being able to call for an account, would not have been able even to eject them if they were settled raiyats of the village when they obtained their leases. As it is, they are sub- mortgagees, and are liable to ejectment, with certain rights against their mortgagor J defendant 1 of this suit; but there is no privity of contract between them and the plaintiffs; and the decree for payment of money cannot properly be made against them, though the plaintiffs decree for recovery of possession will, of course, be valid against them.

6. In support of the cross-objection the learned advocate argues that the suit was barred by limitation: but the sub-mortgage effected by the original mortgagee on 13th June 1879, (Ex. 4) clearly recites the mortgagees rights and liabilities under the mortgage of 10th April 1863, and this is an acknowledgment within the meaning of Section 19, Limitation Act: Moti Lal v. Samal Bechar A.I.R (1930) Bom. 466 . The result is that the decree of the District Judge will be set aside and the decree of the" Munsif restored, with this modification that defendants 2, 3 and 4 are exempted from liability to make any payment to the plaintiffs on account of the failure to pay haqazri.

7. They are liable to pay costs because they contested the suit on various other grounds; and the plaintiffs are entitled to their costs throughout. The cross-objection is dismissed with costs.

Rowland J.

I agree.