JUDGMENT :- This second appeal by defendants arises out of a suit for redemption. It is common ground, that the property in question was mortgaged by the predecessors-in-interest of the plaintiffs, in favour of Sundar, father of the appellants 1, 2, 3, and 4 and Tulsi appellant 5, on 17th Kartak 1992 Sambat, for a sum of Rs. 1400/-. Subsequently on 22-9-49, the plaintiffs purchased the equity of redemption from the original mortgagors for a sum of Rs. 4000/-. Consequently the plaintiffs sought a decree for redemption on payment of the sum of Rs. 1400/- (original mortgage amount) to the defendants-mortgagees.

2. The suit was resisted by the defendants-mortgagees mainly on the ground that the plaintiff had no right to redeem, since the period prescribed in the mortgage deed (10 years) had expired. They, therefore, contended that their (mortgagees) status had matured into that of owners and consequently the suit was bad. In the alternative, it was contended that, they were further entitled to the costs of the improvements effected by them.

3. The Courts below have found, that the right of redemption still existed and the status of the defendants-appellants continued to be that of mortgagees. As regards the alleged improvements, they have found that these were effected during the pendency of the suit, and, consequently, no sum was payable to them (i.e., mortgagees) on that account. In the result, the plaintiffs were granted a decree for redemption on payment of the sum of Rs. 1400/- i.e., the original mortgage amount. Hence, this second appeal by the mortgagees-defendants.

4. Arguments of the learned counsel for the contesting parties were heard yesterday. For reasons to be stated shortly, I am of the opinion, that there is no force in this appeal.

5. Mr. M.L. Sud for the appellants, argued vehemently, that under the terms of the mortgage deed of 1992 B, the mortgage could have been redeemed only within the period of 10 years, commencing from the date of the mortgage, but not later. Mr. Sud conceded, that there was a slip of the pen in the mortgage deed, inasmuch as, it purports to lay down that the mortgage could not be redeemed within the aforesaid period of 10 years.

Mr. Sud admitted, that the word Nahin had inadvertently crept in, in this context, and the intention of the parties was, that the mortgage should be redeemed within the first 10 years, and not later on. Reading the mortgage deed as a whole, there is no room for doubt that there has been a slip of the pen, as conceded by Mr. Sud. The true intention of the parties was, that the mortgage could be redeemed within the first 10 years but not later.

Both the Courts below, have held that this condition amounted to a clog on redemption and consequently, would not be binding upon the plaintiffs. Mr. Sud for the appellants urged, that the provisions of the Transfer of Property Act, were not in force in Bilaspur State in 1992 B, when the mortgage was created. Consequently, I was requested to hold, that the principles embodied in the Transfer of Property Act, could not be applied here.

6. Taking the last point first, it is true, that the provisions of the Transfer of Property Act, were not in force in Bilaspur State in 1992 B. Those provisions were applied to this District on 29-7-49, while the suit, giving arise to this second appeal, was instituted on 27-6-50. In Shero v. Chamaru, AIR 1955 Him-P 46 (A), I had occasion to point out :

"Section 67, Transfer of Property Act, which defines the rights of a mortgagee, as against the mortgagor, so far as the right to maintain a suit for the foreclosure, or sale is concerned, is only procedural and as such, is retrospective in its operation and a mortgagee, claiming under a mortgage executed before the Act, can enforce his remedies according to the present section, even though the procedure before the Act was different."

"A mortgage remains a mortgage until such time as the right of redemption is taken away. In the case of a mortgage by condit

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