Judgment

SHAH, J.-On July 20, 1896, Ladhia-grandfather of the respondents borrowed Rs. 5,000/- from Ramji Dass and as security for repayment thereof mortgaged with possession certain agricultural lands and a house. The mortgage amount was to carry interest at the rate of 12 annas per cent. permensem, and in default of payment of interest due at the end of the year interest was chargeable at one per cent. per mensem. On May 17, 1897, Ladhia executed in favour of Ramji Dass another mortgage deed on the same properties for Rs. 800/-. Interest under that mortgage was payable at the rate of 2% per mensem. Ladhia executed a third mortgage deed in favour of Ramji Dass on May 21, 1897, for Rs. 600/-. It included the properties in the two earlier mortgages and 1/12th share in other lands and two houses. The properties mortgaged in favour of Ramji Dass were subject to a previous mortgage in favour of one Shugan Chand. Ramji Dass redeemed that mortgage on payment of Rs. 650/-.

2. Lakh Ram son of Ladhia filed a suit for redemption of the three mortgages. On August 21, 1915, a preliminary mortgage decree was passed in the suit by the Subordinate Judge, Hissar, declaring that Rs. 62,293/11/9 were due on the mortgages. The High Court of Punjab confirmed the decree on November 24, 1919. But no payment was made under that decree, nor was the decree made final.

3. Some time in 1951 the representatives of Ladhia applied under the Punjab Restitution of Mortgaged Lands Act, "1938, to the Special Collector and obtained an order for restoration of the agricultural lands. Thereafter the mortgages remained outstanding only on non-agricultural properties. The representatives of Ladhia then instituted an action in the Court of the Senior Subordinate Judge, Hissar, for redemplion of the non-agricultural properties, and claimed an account under Section 30 of the Punjab Relief of Indebtedness Act, 1934, and also of Usurious Loans Act, 1918, as amended by the East Punjab Amendment Act 4 of 1948. The representatives of the mortgagee contended, inter alia, that the suit was barred because no payment was made pursuant to the preliminary decree in the earlier suit, that in any event it was contended that the amount due in 1919 under the three mortgages was Rs. 62,293/11/9, and that decision operated as res judicata, and that account under Section 30 of the Punjab Relief of Indebtedness Act should be taken on that footing.

4. The Trial Court held that the mortgage dues were Rs. 7,050/- ; that the mortgagee had received Rs. 48,571/- as income during the time he and his representatives remained in possession of the mortgaged properties ; that the preliminary decree in the earlier suit declaring that Rs. 62,293/11/9 were due operated as res judicata ; and that the present action not being one for recovery of a loan, the rule of Damdupat incorporated in Section 30 of the Punjab Relief of Indebtedness Act, 1934 had no application but Section 2 of the Usurious Loans Act, 1918, as amended by the East Punjab Act 4 of 1948 applied. The Court held that the mortgagee was entitled, besides Rs. 62,293/11/9 to Rs. 17,855/4/3 as interest on the three mortgages and after giving credit for Rs. 48,571/- received as income, the balance due was Rs. 31,578/-. The Trial Court accordingly passed a decree for redemption of the properties in suit on payment of Rs. 31,578/-.

5. In the appeal filed by the parties to the High Court of Punjab, two questions were referred to a Full Bench :

"1. Whether it is open to the legal representatives of a debtor to invoke the help of Section 30 of the Punjab Relief of Indebtedness Act in a suit for possession by redemption ?

2. Whether the provisions contained in Section 3 of the Usurious Loans Act, 1918, as amended in the Punjab, would govern a suit for redemption of mortgage executed before the commencement of the Act ?"

The Full Bench answered the first question in the affirmative, and the second in the negative.

6; A Division Bench of the High Court then