JUDGMENT

Mears, C.J. and Plggott, J. - In this case, as the result of a redemption suit, a decree was passed giving the right of redemption to the mortgagor, and stating that Rs. 382 were surplus profits in the hands of the mortgagee under the terms of the usufructuary mortgage. That sum was arrived at after investigation by a Commissioner but he only took the cultivation down to the 25th of June Possession was given on the 2nd February 1922. A Preliminary decree was passed on the 18th November 19121, on which date the Commissioner had satisfied himself that there was a sum of money due from the mortgage have been given directions by the Judge with regard to the ascertainment of certain sum. On that very date the learned Judge's attention was called to the terms of Order, 34, probably rules 7 and 8 and possibly 9 and thereupon on the order sheet he made a statement that " when the decree is prepared the account will have to be made up to date." From the moment of making that memorandum on the 18th of November 1921 the matter was overlooked, with the result that the figure of Rs. 3,812 was ultimately decided by him to be the amount of surplus profits which the mortgagee should pay to the mortgagor. The mortgagor now comes before the Court and, having quite properly laid emphasis upon the memorandum of the 18th of November 1921, says that the failure to calculate the surplus profits from the 25th of June 1920 to the 2nd of February 1922 can fairly and properly be described as one of those mistakes, errors or ones ions which are referred to in S. 152 of the Code of Civil Procedure, and which can be cured even though the parties have a pending appeal to this High Court. We think that this is right, and, on a review of the whole circumstances it being obvious as the matter stands at present, that the Subordinate Judge was or opinion that surplus pro its were due from the mortgagee to the mortgagor, that we ought to order an enquiry so that the sum of money which is finally found due from the mortgagee, to the mortgagor may be such as is contemplated by the terms of Order 34. We therefore direct an enquiry as to the surplus profits, if any which the mortgagee should pay the mortgagor for the period from the 25th of June 1920 to the 2nd February 1922 during which time the mortgagee was in possession. That enquiry should proceed in the lower Court with due expedition and if it happens that the decretal amount which at present stands at Rs. 3,812 undergoes any alteration, either party may without further application amend within 28 days of the decision of the Subordinate Court their present memorandum of appeal to this Court in any way they think fit, provided such amendment relates solely to this matter which we are deciding today. If necessary an application should be made in this Court to stay the hearing of the appeals if it should happen that the enquiry as to the amount of surplus profits, if any, is not concluded before the appeals come to this Court the object being that when the appeals do come to this Court the matters in controversy right down to the 2nd of February 1922 can be settled once and for all between the parties. The costs of this application will be costs in the cause.

2. As regards the second application the above order supercedes the order of stay passed on the 2nd of November, 1922.