1880 to the records of the case, we find that the suit was one which was instituted "on the strength of foreclosure proceedings BROMHOMOYI and for possession of the mortgaged premises by virtue of the sale having become absolute." DASI v. JUGOBUNDHU Judgment. The Court of first instance appears to have decided the case upon the authority of the case of Huro Chunder Guho vs. Gudadhar Koondoo, 6 W. R., 184, which case was decided in 1866 BROUGHTON,J. when the Limitation Act, XIV of 1859, was in operation. It was there decided, however, that the foreclosure "gave the plaintiff no fresh starting point," and these words are relied upon in the present case. The plaintiff appealed to the Additional Judge, who reversed this decision, on the ground that the mortgagor was put in possession adversely to the plaintiff. The decision of this Court on special appeal in Lall Mohun's case, 25 W. R., 433, was founded on the words of Article 135 of the Limitation Act of 1871, the Court holding that the earlier decisions on the Act of 1859 were inapplicable to this case, and it was held that under Article 135 the mortgagee must sue within the specified time when he was entitled to possession under the deed; thus the suit was treated as a suit by a mortgagee. In the Presidencies of Madras and Bombay, where the Regulation XVII of 1806 does not apply, the law, although it has been disturbed by a series of decisions which has been expressly declared by the Judicial Committee to be quite unsound in principle-Thumbusawmy Moodelly vs. Hossain Rowthan, I L. R. 1 Mad., 1,-gives to the purchaser under a conditional sale an absolute right upon default of payment on the day stipulated. "The essential characteristic of a mortgage by conditional sale was that, on the breach of the condition the contract executed itself, and the transaction was closed, and became one of absolute sale without any further act of the parties or accountability between them. That it still has this effect in the Presidency of Madras was what was decided by the case in 13 Moore's Indian Appeals," ib., p. 16, referring to the case of Patta Chiramier vs. Vencatarow Naicken, 13 Moore's I. A., 560, and so it was in the case of conditional sales prior to the Regulation of 1806 in Bengal -Sureefoonissa vs. Shaikh Enayet Hossein, 5 Suth. W. R., 88. DASI 1880 The purpose for which the Bengal Regulation XVII of 1806 BROMHOMOYI Was passed is stated in the preamble, section 1, as follows:-"It is further requisite, for the purpose of preventing improvident and JUGOBUNDHU injurious transfers of landed property at an inadequate price by the forfeiture of mortgages accompanied with a condition of sale Judgment. to the mortgagee, if the amount advanced be not repaid within a BROUGHTON,J. stated period (which description of mortgage is common through GHOSE. out the country, deeds of bai-bil-wafa, katkobala and other similar designations), that an equitable provision should be made for allowing a redemption of the estate within a reasonable aud limited period, on payment of the principal sum lent, with interest thereupon, if the mortgagee shall not have been put in possession." So that the period within which the right of redemption was to remain was to be extended, for a reasonable and limited period, beyond the actual date fixed for payment by the deed itself, and certain provisions as to notice to the mortgagor, &c., were made for carrying out that object. That is all the Regulation purported to do, and all that it did in this respect. Beyond that it did not interfere with the rights of the purchaser under the conditional sale, which were well established, and which it recognised, namely, that when the period for payment had elapsed the purchaser became absolute owner of the property. But that period was to be extended. The case of Forbes vs. Ameerunissa was a suit for possession of a taluq which had been the subject of a mortgage by conditional sale, proceedings had been taken to foreclose under Regulation. XVII of 1806. It was found that the plaintiff was really in possession, under a benami lease, and it was held that he was entitled to possession without producing accounts of usufruct of the estate, it appearing that the foreclosure proceedings had been regular, and that the debt was admittedly unpaid. If the relationship of mortgagor and mortgagee had subsisted between the plaintiff and defendant when the suit was brought, the Judicial Committee would not have decided that the accounts were unnecessary, because the liability to account is one that arises on that relationship when the mortgagee is in possession, and continues so long as he is in possession, as it was found in 1880 DASI v. GHOSE. that case that the mortgagee was in possession from the beginning, the decision of the Judicial Committee that he was not to BROMHOMOYI account must have proceeded on the ground that when these foreclosure proceedings (in all respects regular) had terminated, JUGOBUNDHU the debt being unpaid, the relation of mortgagor and mortgagee had ceased to exist. The plaintiff did not in that case sue to recover possession as mortgagee, but he claimed to be absolute owner, and it was decided that he was entitled to succeed. So again the right to redeem is an incident which by the terms of the Regulation is gone when the foreclosure is completed by the expiration of the year of grace. The Judge, under section 8, is to notify this to the mortgagor; he is to inform him that if he do not redeem the property in the manner provided within one year from the date of the notification, the mortgage will be finally foreclosed and the conditional sale will become conclusive. The right to redeem, when it existed, was preserved against the operation of the law of limitation for a period of 60 years. But where foreclosure proceedings were completed by the expiration of the year of grace, the mortgagor was held to be barred if he did not sue to open up the foreclosure within 12 years-Lotf Hossein vs. Abdool Ali, 8 Suth. W. R., 476. This case can have been decided upon no other ground than that his position was changed by the foreclosure. In addition to the authority of the case of Ghinarain Dobey vs. Ram Monaruth Ram Dobey, ante 580, lately decided by this Court, the case of Jeorakhun Singh vs. Hookum Singh, 5 Agra, H. C. R., 358, has been cited. There the learned Judges of a Division Bench of the High Court then at Agra had before them a suit brought by the mortgagor under a deed of conditional sale, after foreclosure proceedings, the object of which was to obtain possession of the property and mesne profits from the date at which the foreclosure proceedings terminated. It was contended that their right to possession did not become complete until they had obtained a decree for possession, and the passage already quoted from the judgment in the case of Forbes vs. Ameerunissa was cited in support of that argument, namely, "the title of the mortgagee is not even then complete." Judgment. BROUGHTON, J. 1880 v. But the learned Judges observed that " reading the passage BROMHOMOYI Cited on behalf of the defendants with what immediately follows DASI it, and referring to the Circular Order (of the 22nd of July 1818), JUGOBUNDHU to which reference is made by their Lordships, we do not understand them to rule that the absolute right of the conditional purJudgment. chaser has not accrued to him at the conclusion of the proceedings BROUGHTON,J. taken under the Regulation, or that it is not (if those proceedings GHOSE. . were regular) to be referred back to that period. But we understand them to rule that a conditional purchaser if out of possession cannot obtain possession by summary application to the Judge before whom the foreclosure proceedings were held; but that he must proceed by a regular suit. And that in like manner if he is in possession at the termination of foreclosure proceedings, and finds it necessary to vindicate his title, he must do by a regular suit." The learned Judges of the High Court at Agra quote the Circular Order of 22nd July 1813, and two other Circular Orders of the 25th of May 1832 and of the 17th of June 1834, which are to the same effect. All these Circular Orders show that they were directed against a practice which had grown up and to which they advert, for the mortgagee to make an application to the Judge on the expiry of the year of grace to be summarily put in possession of the property. The learned Judges of the Agra Court go ou to say : "The Regulation expressly declares that on the expiry of one year from the date of the notification the mortgagee will be finally foreclosed and the conditional sale will become conclusive; aud the Sudder Court, while it was fully competent to keep within due limits the exercise of their legitimate powers by Courts subordinate, was not competent to legislate and impose on conditional purchasers, as necessary to the perfection of their rights, a condition not prescribed by the Regulation. "But in truth the Sudder Court did no more than it was competent to do. It ordered the subordinate Courts to abstain from the exercise of a jurisdiction which was not couferred on them by the Regulation, and it left conditional purchasers who had obtained foreclosure, if they required the assistance of the Court to obtain the enjoyment of their rights, to DASI 1. GHOSE. Judgment, BROUGHTON,J, proceed in due course by the institution of regular suits," and 1880 they quote a passage from Mr. Justice MACPHERSON's work on BROMHOMOY! Mortgages :-"With that year (of grace) ends the mortgagor's whole interest in his property, unless he can prove that previous JUGOBUNDHU to its lapse he was entitled to have it declared that the mortgage had been redeemed;" and they held that the rights of the mortgagee who had foreclosed, i.e., absolute rights must, if established where they are contested, be referred back to the period at which the proceedings under the Regulation came to an end, and must be held to have become absolute at that date, and they accordingly gave him mesne profits, to which, if he had remained a mortgagee, he would not have been entitled. Dr. Guru Dass argues that this is not the case; but this argument appears to be answered in the case of a mortgage by conditional sale by the following passage of the judgment of the learned Judges of the Agra Court, who say :-" Indeed, were we to hold otherwise, i.e., that the plaintiff is not entitled to mesne profits, we should be doing injustice to the conditional purchaser, for from the termination of the foreclosure proceedings he can claim no interest upon the mortgage debt, and if the conditional vendor was not answerable for mesne profits for the period antecedent to the recovery by the purchaser of a decree for possession, it would in many cases be to his interest to prolong to the utmost limit frivolous and vexatious litigation." Mesne profits appear to have been given by this Court in a similar case-Mussamut Pandoo Koonwar vs. Mohesh Chunder Mookerjee, 60 of 1860, referred to in Jeorakhan Singh vs. Hookum Singh, 5 Agra H. C. R., 364. The two cases of Dinonath Gangooly vs. Nursing Pershad Dass, 22 Suth. W. R., 90, and Mussamut Munkee Kooer vs. Shaikh Munnoo, ib., 543, do not appear to me to have any bearing upon the present case. The question in those cases arose under the Limitation Act of 1849, and the Court was asked to decide when the cause of action arose, and that depended upon the right to possession in the plaintiff and the adverse possession of the defendant. In the first case the defendants having purchased from the vendor under the conditional sale at an auction without notice of the mortgage, and having got into possession and claiming as absolute owners, their possession was held to be adverse |