JUDGMENT

1. An application by Muhammad Sher Khan purporting to be one under 8. 144, Civil P.C., for restitution was dismissed by the learned Subordinate Judge of Kheri and he has appealed to this Court.

2. The appellant had mortgaged his property to Seth Raghubar Dayal predecessor-in-interest of the respondents. The mortgage at its inception was simple for a sum of Rs. 82,000 repayable at the end of 5 years, during which time interest was to run at a certain rate per cent., with 6 monthly rests. If the principal and interest were not paid at the end of 5 years the mortgagee was given the option to take possession of the mortgaged property for a period of 12 years from the date of his entering into possession, during which time the mortgagor was deprived under another condition of the mortgage of the right of redemption. The original mortgagee's son Seth Swami Dayal exercised his option and sued for possession of the property on 14th July 1913. In the written statement the appellant who was defendant to the suit expressed his intention to redeem the property. The suit was decreed by the Court of the Subordinate Judge and the decree was upheld by this Court. After the decree was upheld by this Court Mohammad Sher Khan brought a suit for redemption on 18th June 1915. This suit was dismissed both by the trial Court and this Court on the ground that under one of the conditions of the mortgage the mortgagee was entitled to remain in possession for 12 years after entering into possession.

3. Special leave was obtained by Mohammad Sher Khan to appeal to the Privy Council from both decrees of this Court. The judgment of the Privy Council is reported as Mohammad Sher Khan v. Swami Dayal A.I.R. 1922 P.C. 17. Their Lordships considered both the suits together, discharged the decrees of the Courts in India and directed the preparation of one preliminary decree for redemption in both suits in accordance with Order 34, Rule 7, Civil P.C. Their Lordships further directed that in taking accounts the period during which the mortgagee may have been in possession under the decree in suit of the mortgagee for possession should be excluded and during this period neither the mortgagee will be accountable for profits nor the mortgagor for interest, in accordance with one of the terms of the mortgage.

4. When the suit was remitted by this Court to the trial Court for the preparation of a preliminary decree the trial Court put Mohammad Sher Khan in possession at once. This order was set aside by a Bench of this Court on 25th May 1922. The mortgagee was restored to possession and the trial Court ordered to prepare a preliminary decree for redemption as directed by their Lordships of the Privy Council. In that judgment this Court explained the nature of the Privy Council decree. It was observed in that judgment "we construe the judgment of their Lordships to mean not that the provision in the mortgage whereby the mortgagee was to get possession for default of payment of interest or payment of the mortgage-money at due date was altogether void but merely that it could not be used to prevent redemption by the mortgagor." We agree with this opinion. Their Lordships held the possession of the mortgagee on breach of a condition of the mortgage to be legal but held that a condition directed towards enforcing such possession for 12 years was invalid and that the mortgagor can obtain redemption at any time even within that period.

5. A preliminary decree for redemption as well as a final decree were prepared by the lower Court fixing a certain amount as payable by the mortgagor to the mortgagee.

6. Appeals were brought by both parties to this Court as regards the amount of redemption money fixed by the trial Court and all these appeals were dismissed by a Bench of this Court on 22nd October 1923.

7. On 22nd February 1923 Mohammad Sher Khan applied for restitution on the ground that the mortgagee has committed waste during the period of his possession. By that app