JUDGMENT
1. This case comes before us by reason of a difference of opinion between the Judges who decided Second Appeal No. 1696 of 1922.
2. The question is one of the interpretation of a decree passed in a suit for redemption of a mortgage, and the facts may shortly be stated as follows:
3. Babu Sheo Darshan Singh brought a suit for redemption of a mortgage and obtained on the 22nd of April 1919 a preliminary decree. The Court found that the plaintiff had to pay for redemption a sum of Rs. 1,747-8-6 for principal and interest and Rs. 69-2-0 for costs, making a total of Rupees 1816 10.6.
4. The item for costs just referred to included only two-thirds of the costs incurred by the defendants mortgagees. This sum was deposited by the plaintiff’ mortgagor in the Court and on the 26th of 1919 a final decree under Order 34, Rule 8 was passed. On the 15th of July 1919 the plaintiff was put in possession of the mortgaged property.
5. Mean while the mortgagees appealed against the preliminary decree, and on the 2nd of December 1920 the appellate Court varied the preliminary decree by directing the payment of a larger sum and also by giving direction for payment of certain costs. The time for payment was extended by the appellate decree to the 2nd of March 1921. Before this latter data the plaintiff did deposit in Court an extra sum of Rs. 175 making a total of Rs. 1,991-10-6. There was however due from him under the appellate decree a further sum of Rupees 45-6-0 in respect of costs, and this sum he did not pay before the date in question.
6. On the 18th of June 1921 the mortgages applied to the Court and asked to be restored to possession of the mortgaged property, on the grounds that the decree of the appellate Court had modified the decree of the Court of first instance and that the full sum payable by the plaintiff mortgagor had not been deposited in Court. The mortgagee also asked for mesne profits for the period covered by the plaintiff’s possession. The defendants got an order for redelivery of possession and also got an order entitling them to Rs. 800 as mesne profits for two years. The plaintiff then appealed on the ground that he had in effect complied with the terms of the appellate decree and was not entitled to re-deliver possession to the mortgagees. In other words his plea was that the payment of the above mentioned sum of Rs. 45-6-0 was not a condition precedent to his obtaining redemption and to his being entitled to retain possession of the mortgaged property.
7. The question arose therefore whether this sum of Rs. 45-6-0, costs awarded in appeal, was a charge on the mortgaged property. Was this sum added to the mortgage money? The two learned Judges of this Court have differed in their opinion regarding this matter. It appears to us however that the view taken by Mr. Justice Daniels is the correct view and that as a matter of law this sum of Rs. 45-6-0 was a charge on the mortgaged property. It is true that in the decree of the appellate Court there was some confusion regarding the order for costs. The appellate Court was of opinion that the defendants mortgagees were entitled to their full costs in the Court of first instance; that is to say to a sum over Rs. 100 and it made an order accordingly. It laid down that the plaintiff mortgagor was liable to pay Rs. 1,991 10-6 by the 2nd of March 1921 and then went on to give further direction regarding costs. Both sides admit that as framed the additional order regarding costs was erroneous in respect of the amount specified; but there is no dispute whatever that a sum of Rupees 45-6-0 was payable by the mortgagor under the appellate Court’s decree. The question whether costs awarded in the manner just referred to were a charge on the mortgaged property is one regarding which the law is well settled and in this connexion we may refer to the statement of the law laid down in Ghose’s law of Mortgage in India, Edn. 4, Vol. 1, p. 619. Speaking of redemption the learned author says:
But the costs of the action will, as a rule, be only added to the amount of the security; and the mortgagor will be made personally liable for them only in very exceptional cases of mis-conduct.
8. The learned author goes on to say that it is certainly competent to the Court in the exercise of its discretion to award the costs personally against the mortgagor; but where the terms of the decree are ambiguous it ought not to be construed in such a manner as to enable the mortgagee to realise his costs personally from the mortgagor. The law has been laid down in the same sense in a case in this Court reported in Amina Bibi v. Ram Shankar Misra AIR 1919 All 297. We think therefore that the interpretation put upon this decree by Daniels, J., was a correct one and in accordance with the law as explained above. It follows therefore that the mortgagor, having failed to make a deposit in Court of the full sum charged upon the property, was not entitled to retain possession as against the mortgagees after the decree had been passed in appeal. We approve of the view taken by Daniels, J., and dismiss this appeal with costs including fees on the higher scale.
