(Prayer: Appeal (disposed of on 22-1-1948) against the order of the District Court, Nellore dated 25-2-1916 in C.M.A. No. 124 of 1945 preferred against the order of the Court of the District Munsif, Kavali dated 4-10-1945 in I.A. No. 691 of 1944 in O.S. No. 50 of 1942.)

The appellant mortgaged certain property to the respondents father. The mortgage was in simple form, but at some time, whether at the date of the mortgage or subsequently is immaterial, the respondents father went into possession of the mortgaged property. Thus the mortgagee was a mortgagee in possession. The appellant filed a suit for redemption in the Court of the District Munsif of Kavali and obtained a preliminary decree on the 6th of October 194

2. The respondents father died during the pendency of these proceedings and the respondent was joined as his legal representative. The preliminary mortgage decree for redemption followed the form prescribed in O. 34, R. 7 Civil Procedure Code. The District Munsif in granting a preliminary decree arrived at a decision as to the amount payable by the mortgagor after making due allowance for the profits of the mortgaged property received by the respondents father or the respondent up to the date of the preliminary decree. On the 14th of July 1944 the appellant filed an application for an account to be taken of the profits received by the respondent after the date of the preliminary decree and before the passing of the final decree. In the meantime the appellant had paid into Court the amount fixed by the preliminary decree and the respondent had delivered up possession to the appellant. The dates on which payment was made and possession was given are immaterial. It is sufficient to note that both these acts had been done at the time when the appellant applied for a final decree. The appellant appears to have described his application as one falling under R. 7 of O. 34, and it has been so referred to in both, the Courts below. This was clearly a mistake as the application must necessarily have been one under R. 8 of O. 3

4. The District Munsif held that as the preliminary decree gave no direction for the taking of an account in respect of the profits after the date of that decree such an application would not lie. He held that the appellant would have to seek his remedy elsewhere and dismissed the application. The appellant appealed to the District Court of Nellore. The respondent resisted that appeal on two grounds both of which were upheld by the District Judge. The respondents first objection was that no appeal lay. His second was the ground in his favour by the District Munsif. The District Judge held that the order dismissing the appellants application was not an order appealable under the provisions of O. 43, R. 1 and accordingly that no appeal lay. The learned Judge was clearly in error on this point, and Counsel for the respondent before me conceded at an early stage that this decision could not be supported. As I have observed, the appellants application was for a final decree. He has been refused that relief. It is beyond question that an appeal would lie from a final decree, and it cannot be contended that a similar right will not lie when the relief is refused.

On the respondents second point of objection the District Judge agreed with the decision of the District Munsif that in the absence of any provision in the preliminary decree for the taking of an account no such account could be ordered.

On second appeal to this Court, the appellant urges that an appeal lay to the District judge and that he was entitled to an account of the profits received by the respondent after the date of the preliminary decree and up to the date on which possession was given as a necessary preliminary to the passing of a final decree. That he is so entitled is well-settled law. A mortgage suit continues until the final decree is passed and the relationship of a mortgagor and mortgagee continues until then. Accordingly a mortgagee in possession has until the expiry of that period the liabilities imposed on him by S. 76 of the Transfer of Property Act. It is true that O. 34, R. 8 does not in terms provide that a mortgagor in a suit for redemption applying for a final decree is entitled to have an account taken of the profits received by the mortgagee in possession between the date of the preliminary decree and the date when possession is given; but the provisions of O. 34 read as a whole clearly indicate that such an account must necessarily be taken. Even if they did not, the right of the mortgagor to such an account is established beyond question by the provisions of S. 76 of the Transfer of Property Act. Again it is beyond question that when a suit whether for sale or redemption of a mortgage is filed it is the duty of the Court to decide in that suit all the claims of the mortgagor and mortgagee under the mortgage up to the date when the final decree is given. Such claims can and indeed must be included in the mortgage suit. If they are not included the person failing to include them is barred thereafter under the provisions of O. 2, R. 2 Civil Procedure Code from filing a suit in respect of them. There are a large number of cases both in this Court and in the other Indian High Courts in which these propositions are laid down beyond question. Vinayak v. Dattatraya (26 Bom. 661) Rukmani Bai v. Venkatesh (31 Bom 527) [LQ/BomHC/1907/101] Satyabadi Behara v. Herabati (34 Cal. 223), Kashi v. Bajrang Prasad (30 All 36), Ramdin v. Bhup Singh (30 All. 225)Chandulal v. Bharat Singh(A.I.R. 1935 All. 96) Papla Chakrapani Chettiar v. Ramaswami Thenkondan (42 I.C. 230) and Suppan Chettiar v. Rangan Chetti (A.I.R. 1938 Mad. 405 at 411).

When these authorities were referred to, Counsel for the respondent conceded that the Courts below were in error in refusing to order an account to be taken, but he urged that that the account could be taken only for the period between the date of the preliminary decree and the date fixed for redemption. I can find no justification for this qualification. On the contrary I am satisfied after a consideration of the authorities to which I have referred that no such qualification, can be justified; the account must necessarily be an account of all profits received by the respondent prior to the date of the final decree. I think it is more convenient to put it that way than to say up to the date when possession is given; for in some cases possession may not be given until after the final decree is passed. I refrain from expressing any view whether in such cases the account can properly take into consideration the profits arising after the date of the final decree as that question does not arise in this case for decision.

Accordingly the District Munsif must deal with the application for a final decree and take an account of the profits which accrued to the respondent or his father, as the case may be, between the date of the preliminary decree and the date on which possession was given to the appellant and the case will be returned to the District Munsifs Court for that purpose. In taking that account due regard will be paid to the provisions of S. 76, particularly Sub-Ss. (g) and (i) of that section.

The appeal is accordingly allowed and the decisions of the Courts below are both reversed, with costs throughout.

No leave.