Pande, J.This is an application against the order dated 4th December 1943 of the Subordinate Judge, First Court, Chapra, which disallowed the petitioners prayer for permission to deposit the decretal amount under a preliminary decree for the redemption of a zarpeshgi bond. It appears that the preliminary decree was passed on 15th May 1931. On appeal the appellate Court directed that

if the plaintiff deposits or pays Rs. 150 before Jeth next, he shall get a final decree for possession with effect from Asarh next.

This order was made on 22nd July 1932 that is, after the month of Jeth of that year.

2. Therefore, under the preliminary decree as modified by the appellate Court, the petitioners were required to pay the amount of Rs. 150 before the month of Jeth of 1933. Against that order there was an appeal to the High Court which dismissed the appeal on 12th December 1935. The petitioners failed to make payment till September 1942 when an application was made on their behalf to the original Court to accept the decretal amount by extending the time. The learned Munsif rejected the prayer. The order was affirmed by the learned Subordinate Judge who heard the appeal. Hence this petition.

3. It has been urged for the petitioners that before a final decree debarring the plaintiffs from all right to redeem the mortgage property is passed, they are entitled to redeem the mortgage on payment of the amount declared by the preliminary decree even after the expiry of the time for payment fixed by the Court. The learned advocate for the opposite party contended that the petitioners right to redeem the mortgage under the preliminary decree is barred by the operation of Article 181 of Schedule 1, Limitation Act.

4. Now a preliminary decree in a suit for redemption of a usufructuary mortgage may, under Clause (c)(i) of Rule 7(1) of Order 34, Civil P.C., fix a time for payment of the amount declared due under the decree. But default in making the payment of the amount declared under the decree within the time fixed does not operate to debar the plaintiff mortgagor from all right to redeem the mortgaged property. If payment of the amount declared due under the preliminary decree is not made within the time fixed by the Court, then under Clause (c)(ii) of Rule 7(1) a mortgagee defendant is entitled to apply for a final decree in the case of a mortgage other than a usufructuary mortgage. It follows that the mortgagee is not entitled to apply for a final decree in the case of a usufructuary mortgage. It is only the plaintiff-mortgagor who can apply to the Court to pass a final decree and on payment of the amount declared due under the preliminary decree to order the mortgagee to put Mm in possession of the mortgaged properties. The terms of final decree in the case of a mortgage other than a usufructuary mortgage vary according to the nature of the mortgage as provided by Sub-rule (8) of Rule 8 of Order 34, Civil P.C. The obvious reason for the exception in regard to usufructuary mortgage from the effect of default in making payment of the decretal dues within the time fixed by the Court seems to be that the mortgagee being in possession of the property, his interest is not in any way affected by the plaintiffs failure to make payment within the time fixed by the preliminary decree. It is the mortgagors interest that suffers for until he makes payment he can-not get back the mortgaged property.

5. In the case of a usufructuary mortgage the mortgagor need not ask for extension of the time fixed for payment by the preliminary decree under the provision of Sub-rule (2) of Rule 7. The provisions of that Sub-rule apply to the case of mortgage for foreclosure or sale only. The effect of extension of time under the said Sub-rule is postponement of the time for passing the final decree for foreclosure or sale, as the case may be, which is not allowed in the case of a usufructuary mortgage.

6. The mortgagors right to redeem the mortgaged property subsists until a final decree debars the mortgagor from all right to redeem, and that in the case of a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale. In the case of a final, decree that provides for sale of the mortgaged property, or a sufficient portion, thereof, to satisfy the mortgage-debt, the, mortgagor is entitled to redeem the mortgaged property even after sale has taken place but before confirmation of the sale.

7. It is in the case of a mortgage decree by conditional sale, or anomalous mortgage the terms of which provide for foreclosure only, where the final decree declares the plaintiff, debarred from a11 right to redeem the mortgaged property, or, where in pursuance of the final decree the mortgaged property has been sold and the sale is confirmed, that the right to redeem is extinguished. In other cases the right to redeem the mortgaged property subsists, and so long the right is there, it is always open to a mortgagor to avail himself of that right on payment of the amount declared due under the preliminary decree.

8. The above view finds support from several reported decisions of which the following may be referred: Shaikh Somesh v. Ram Krishna (1900) 27 Cal. 705, Pardas Singh v. Dwarka Singh (10) 7 I.C. 50, Saligram v. Muradan (03) 25 All. 231 and Narayan Reddi v. Papayya (99) 22 Mad. 133. These cases are authority for the proposition that the right of redemption is not lost until the order absolute for foreclosure is made. The case in Saligram v. Muradan (03) 25 All. 231 seems to be directly in point. It was a case of a usufructuary mortgage. The preliminary decree was passed in the year 1893 and the mortgagor deposited the decretal dues in the year 1901. It was held that the mortgagor was entitled to redeem.

9. In the above view of the law it must be held that the petitioners are entitled to redeem the mortgaged property on payment of the amount declared due under the preliminary decree even though they offered to deposit the amount nearly seven years after the preliminary decree was finally affirmed on dismissal of the appeal by the High Court. On payment of the decretal dues the petitioners shall be entitled to apply to the Court to pass a final decree directing the opposite party to put the petitioners in possession of the mortgaged property. Therefore the petition must succeed.

10. The advocate for the opposite party contended that the petitioners right to redeem the mortgaged property under the preliminary decree is barred by limitation, but no question of limitation arises in this case as the plaintiff has a right to apply for the final decree until his right to redeem the mortgaged property is barred. It is not disputed that the plaintiff has still the right to redeem the property, but it is contended that he should bring a fresh suit for redemption. I do not think that it is necessary to compel him to bring a fresh suit if the appropriate remedy can be granted in this litigation.

11. In the circumstances I would allow the petition with costs. Hearing fee one gold mohur.

Fazl Ali, C.J.

I agree.