JUDGMENT

Misra and Madeley, JJ. - This is defendants' application in revision against the appellate order of the learned District Judge, Lucknow.

2. In 1833 Mst. Deoka had made a mortgage of certain property Mata Din and delivered posses -ion thereof in lieu of interest. The plaintiffs Ram Dayal and Parmeshwar Din are the; representatives of the mortgagor, while-". the defendants Matt Din and On Singh are the representatives the mortgagee. On 18th October, 194r Ram Dayal and Parmeshwar Din "applied for redemption u/s 12 of the Agriculturists' relief Act, and they sought the benefits of the U.P. Debt Redemption Act in calculating (he amount of mortgage money. They claimed that if interest was calculated in accordance with (he latter Act, no amount was payable towards the principal and interest. The defendants resisted the suit on a number of grounds which need not be mentioned for the purposes of this judgment. It is sufficient to say that all the defences were overruled, and the learned Assistant Collector ordered delivery of possession on the mortgaged property to Ram Dayal and Parmeshwar Din holding that nothing was due to the mortgagees. When the matters reached the lower appellate Court at the instance of the defendants, Ram Dayal and Parmeshwar Din who were respondents, raised a further point that they were entitled to a decrepit respect of the excess amount realised by the mortgagee and his successors during the period of their possession. This contention was advanced in view of a Bench decision of this Court reported in Raja Ram v. Mushtaq Husain 1942 OA 237 : AWR (CC) 216 : OWN 345, wherein it was held that if a creditor had been overpaid, a decree for refund of the overpayment was competent under the provisions of Chapter III of the Agriculturists' Relief Act. The learned District Judge following the afore- said decision passed a decree in favour of Ram Dayal and Parmeshwar Din for a sum of Rs. 600. Dissatisfied with the aforesaid order the defendants have come up by way of revision.

3. The case has been referred to a Bench of this Court by our brother, Gbulam Hasan, J. as it raised some important questions of law.

4. A preliminary objection to the maintainability of the application u/s 115 has been raised by the learned Counsel for the opposite-parties. It is urged that the utmost that in be said on behalf of the applicants is that the decision of the lower Court is wrong on a question of law, and there being no defect of jurisdiction as contemplated by Section 115 the application does not lie This argument, in our opinion, is unsound. The case, as put forward on behalf of the applicants, is that in applying the provisions of the Agriculturists' Relief Act and the U P. Debt Redemption Act the Court below acted in excess of its jurisdiction in passing a decree for refund of the excess amount realised by the mortgagee and his successors during the period of their occupation. We think that the preliminary objection has no force. It accordingly fails. The main controversy centers round the question whether in applying the provision-; of the U.P. Debt Redemption Act, the Court is empowered to order refund of the excess received by the mortgagee. Section 9 of the U.P. Debt Redemption Act clearly provides that nothing in that section entitles the debtor to a refund of any sum already paid by him. It appears to us that Section 9 only entitles the debtor to have th.3 interest re- calculated and the amount which is due against him determined. If as a result of this accounting it is discovered that the creditor has realised more than what he would be entitled to the basis of the rate of interest allowed under the Act, no claim for refund would bi permissible- In face of this clear prohibition it is not possible to conceive of any inherent power to pass a decree in favour of the debtor for any sum realizable by him from the mortgages. The provisions of the CPC are, by virtue of Section 24, applicable to proceedings under the U.P. De