MALIK, CJ. :- The facts of this case are very simple, but it raises a point of law of some interest, as there are no clear decisions on the point.

The plaintiff-appellant is the mortgagor who filed a suit for redemption of a mortgage with possession. That suit was decreed on 24-7-1934 on payment of Rs. 6221/-. A decree under Order 34, R. 7 for redemption of the mortgage was passed and the decree-holder was given six months time to pay the amount. The decree-holder mortgagor thereupon deposited Rs. 6221/- and on the deposit being made in accordance with the provisions of Order 34, Rule 7, a final decree for redemption was passed and the plaintiff-decree-holder was put in possession of the property.

The money, however, remained in deposit in the Court as the defendants did not choose to withdraw it. The defendants filed an appeal, which was allowed on 18-4-1941. It was held that the mortgage had become time-barred on the date of the suit and the plaintiff could not, therefore, get a decree for redemption. Thereafter the defendants applied under Section 144, Civil P.C. for restoration of possession and also claimed mesne profits for the period during which they had been out of possession. The plaintiff raised various pleas. One of the pleas raised by the plaintiff was that they were not entitled to any mesne profits as during the period that they were out of possession, the sum of Rs. 6221/- had remained deposited in Court and they could have easily withdrawn that amount. The lower Courts have held that the defendants were not bound to withdraw the sum of Rs. 6221/- and have allowed them mesne profits, calculating the amount on the basis of gross rental. The plaintiff was, however, allowed 10 per cent, as collection charges and was given, credit for the amount paid by him as land revenue and interest on the balance of the income payable to the defendants was also charged. A sum of Rs. 1957/12/5 was found due from the plaintiff to the defendants.

2. In this second appeal the point urged is that in allowing mesne profits, the amount which the defendants would have earned on the sum of Rs. 6221/- if they had withdrawn the amount, should be deducted. Learned counsel for the defendants, however, has urged that the defendants were not bound to withdraw the amount and as they did not withdraw it, the income that might have been earned from that amount should not be taken into consideration in working out the mesne profits.

Several cases have been cited at the Bar, but barring certain observations in - Daluram v. Ramanand, AIR 1929 Pat 593 (A) the other cases are not very helpful. - Sitaramayya v. Venkanna, AIR 1942 Mad 166 (B) is a decision of a Bench of the Madras High Court where A had obtained a decree against R for a sum of money. R appealed. A did not apply for execution but R in anticipation of such an application asked for stay of execution. The stay was granted on his furnishing security to the satisfaction of the Court in the amount of the decree. As R was not able to furnish security, he deposited the whole amount in cash which remained lying in Court. Rs appeal was allowed and the suit filed by A was dismissed. Thereupon R became entitled to withdraw the money that he had deposited. He filed an application under Section 144 for restitution and claimed interest. The Court held that if the respondent had suffered any loss, the blame rested on him and he could not claim that A should be made to make up the loss. The learned Judges pointed out that A had not even applied for execution of the decree and he was not responsible either for the deposit or for the money remaining idle in Court for the period during which the appeal had remained pending.

The other case, viz., - Ma Tok v. Mating Mo Hnaung. AIR 1925 Rang 215 (C), is also not very helpful. In that case A had obtained a decree against B. In execution of the decree Bs property was sold and purchased by X. X deposited the money in Court. The sale was, however, not confirm