Sir George Lowndes:-

The only question in this appeal is whether the respondent is entitled to redeem a certain mortgage.. If this right, which has been affirmed by both Courts in India, is exercisable, it is not disputed that the decree passed by the Subordinate Judge on 16th August 1924, is correct. The mortgage in question was dated 8th December 1892, and was executed by members of the Beloor Maloor Tarwad in favour of the appellant. On 13th September 1897, the appellant brought a suit on the mortgage which was compromised, and a decree dated 2nd January 1899, was passed in accordance with the compromise. The terms of this decree were in effect that the mortgagors should pay to the appellant within three years a sum of Rs. 31,000, together with a yearly rent in kind: that in default of payment of the Rs. 31,000, or of the rent, the appellant should be entitled to obtain, by process of execution, possession of the property, and to retain the same as usufructuary mortgagee, the mortgagors having the right to redeem in any year thereafter on payment of the Rs. 31,000 and to obtain delivery of the property “by taking out execution.”

No rent was paid and in March of the following year possession was taken by the appellant under the decree. It is not disputed that the appellant remained in possession as mortgages, but it is said that the mortgagors' only remedy was by execution of the compromise decree, and that remedy is long since barred. On 7th December 1901, the appellant made a further advance o£ Rs. 1,675 to the mortgagors on the security of a simple mortgage of the same properties. On 20th December 1909, the equity of redemption of the mortgagors was sold in execution of a money decree which had been passed against them in other proceedings and was purchased by one Subbaraya Kamthi, who on 22nd April 1913, assigned his right to the respondent. On 18th September 1912, the appellant sued on the simple mortgage of 7th December 1901. He joined as defendants the karnavan of the mortgagor tarwad and Subbaraya Kamthi, who was described as having purchased the equity of redemption subject to the mortgage in suit and to the usufructuary mortgage for Rs. 31,000, which obviously meant the mortgage under the compromise decree. The prayer of the plaint was for payment of the sum due under the simple mortgage and that in default the property should be sold and the sale proceeds:

“applied in payment of what may be found due to the plaintiff subject to or free from the previous usufructuary mortgage in favour of the plaintiff's tarwad, as the Court deems fit.

On 22nd November 1912, a decree was passed in this suit in favour of the appellant providing for sale, in default of payment, subject to the usufructuary mortgage and a final decree for sale on these terms was made on 12th September 1914. On 17th December 1918, after two separate applications had been made by the appellant for sale of the property, the respondent applied to pay off the decree in right of his assignment from Subbaraya Kamthi. In his petition, of which notice was given to the appellant, he referred to the decree as having been passed subject to the payment of the Rs. 31,000 due under the compromise decree of January 1899, and made it clear that his object in making the payment was to redeem the earlier mortgage. By consent of both parties the sum claimed as due under the simple mortgage, which amounted to Rupees 6,115-12-0, was brought into Court and was paid out to the appellant on 18th December 1918, in full satisfaction of the decree. The respondent then applied in execution of the compromise decree to redeem the usufructuary mortgage. His application was resisted by the appellant as out of time. It was rejected on this ground by the Subordinate Judge and his decision was confirmed on appeal, the Courts holding that the remedy by execution was barred on the expiry of three years from the date of the decree, i.e., in January 1902.

The respondent then instituted the suit o