Jamuar, J.:— This appeal is by defendants 1 to 4(a), and arises out of a suit for redemption brought by the plaintiffs, who are members of a joint Hindu, family and carry on business in coal under the name and style of Baidyanath Mandal and Co. The facts giving rise to the suit are these.

Thakur Girdhari Singh of Nowagarh was the proprietor of the two villages concerned in this case, namely, villages Kenduadih and Natundih. On the 14th Chaitra, 1313 B.S, corresponding to the 20th March, 1907, he gave in lease by means of a registered patta (exhibit 7) a plot of coal land having an area of 220 bighas in village Kenduadih, as described in Schedule A of the plaint, to one Prasanna Kumar Roy. The lease is still subsisting.

Thereafter Thakur Girdhari Singh died and the succession to his estate being governed by the law of lineal primogeniture he was succeeded by his eldest son Ran Bahadur Singh, who by a registered patta [exhibit 7(a)], dated the 14th February, 1921, gave in lease the coal mining rights in village Natundih, as described in Schedule B of the plaint, to one Damodar Prasad Lala. This lease is also subsisting.

Then on the 29th November, 1922, Ran Bahadur Singh executed a mortgage, which is called either a usufructuary mortgage or an anomalous mortgage, by a registered deed (exhibit 9) in favour, of the defendants 1 and 2 and the father of defendants 4 and 4(a), named Sheodanmall Marwari, to secure a loan of Rs. 15,000 on the properties described in Schedules A and B of the plaint, and the mortgagees were said to have been put in possession of these properties, that is of both the villages Kenduadih and. Natundih. The mortgagees were entitled to recover rent and royalties from the leasehold properties, the minimum royalty for Schedule A property being Rs. 1,925 and that for Schedule B property Rs. 4,720 per annum. According to the plaintiffs, the dues under this mortgage bond had been fully satisfied from, the rents and royalties realised by these mortgage deeds.

Ran Bahadur Singh executed another mortgage deed on the 2nd February, 1923, mortaging the entire yillage Kenduadih along with some other properties to Srimati Probhabati Devi, the widow of the late Rai Bahadur Jyotirmoy Chatterji. On her death her son T.K Chatterji instituted a suit, being. Mortgage Suit no. 17 of 1927, on the basis of that mortgage and having obtained a decree transferred it to one Suresh Chandra Dutta, who in his turn assigned it to Srimati Saralakshi Debi. She put the decree into execution and the entire village Kenduadih as also the property described in Schedule A of the plaint were sold and they were purchased by the plaintiffs on the 15th July, 1943. The plaintiffs obtained the usual sale certificate and also the delivery of possession through Court.

In these circumstances, the plaintiffs brought their suit, out of which this appeal has arisen, on the 12th January; 1944, against defendants 1 to 4(a) as also against two other defendants, namely, Thakur Manmohan Singh, the son of Ran Bahadur Singh, as defendant no. 5, and Srimati Hira Kumari Devi, the wife, of Thakur Manmohan Singh, as defendant no. 6. They claimed to be entitled to redeem the two villages, Kenduadih and Natundih, which were given in mortgage to the defendants. Their further claim was that the stipulated rate of interest under the mortgage, namely, at the rate of 24 per cent per annum compoundable with yearly rests, is excessive and penal and should be reduced.

The defendants, who are the appellants, contested the suit. Their main defence was that they as mortgagees were not put in actual possession of village Natundih by Ran Bahadur Singh and that the minimum royalty mentioned in their lease in respect of this village was kept in abeyance for a certain period awaiting the allotment of a railway siding in the vicinity of the village, and on the 23rd December, 1926, by a document called a Patta Ran Bahadur Singh absolved the lessee of Natundih, namely. Damodar Prasad Lala, from payment of the minimum royalty according to the previous, lease as he reduced it from Rs. 4,720 to Rs. 1,000 only. These defendants pleaded that, in these circumstances, in spite of all attempts, they were unable to realise anything from Damodar Prasad Lala as royalty for village Natundih. They admitted their liability to render accounts to the plaintiffs but stated that they were entitled to the full benefit of the terms under the mortgage bond without any reduction in the stipulated interests. According to these defendants, the entire amount of principal and interest is still due. Their further defence was that the suit was barred by the principle of res judicata as the relief claimed in this suit had been directly and substantially in issue in two previous suits, namely, Money Suit no. 568 of 1934 and Money Suit no. 27 of 1941.

The learned Subordinate Judge of Dhanbad passed a preliminary decree for redemption. With regard to the rate of interest, which was mentioned in the mortgage bond, namely, 24 per cent per annum compoundable with annual rests, the learned Subordinate Judge made a mention of section 5 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939, and stated that the maximum rate of interest provided under that section for a secured loan was 9 per cent per annum simple, and proceeded to apply the provisions of section 7 of the same Act and reduced the interest by holding that the defendants were entitled to no more than double the amount of principal as interest, as provided by that section.

The learned Subordinate Judge also came to the conclusion that the defendants never realised any profit out of village Natundih and as such they were not liable to account in respect of this village. He accordingly ordered that an account be taken of the profits realised from village Kenduadih from the date of the execution of the mortgage bond, up to the date of the decree in order to ascertain whether the amount to which the defendants have been found entitled has been satisfied therefrom. He held that the amount thus found to have been realised by the defendants from Kenduadih would be set off towards their claim and in case the debt be found not to have been fully satisfied, the plaintiffs should be liable to pay the balance to redeem the Kenduadih property, as described in Schedule A of the plaint.

As against the decree passed by the learned Subordinate Judge, the defendant-appellants have preferred this appeal and the appeal has been confined only to the question of the interest payable on the principal amount of Rs. 15,000. As I have just stated, the learned Subordinate Judge reduced the interest of 24 per cent, per annum compoundable with annual rests, as was mentioned in the mortgage bond, by applying the provisions of section 7 of the Bihar Money Lenders Act. The contention of the appellants in this appeal is that neither section 5 nor section 7 of that Act can have any application to the present case with the result that the interest, as stated in the bond, should be left untouched, as it is neither excessive nor penal. The appellants have also contended that they are entitled to interest pendente lite as also to future interest till realisation of the amount found due to them.

The plaintiff-respondents have also filed a cross-objection against that part of the judgment of the learned Subordinate Judge in which he has found that the defendants never realised any profit out of the Natundih property and that accordingly they were not liable to account in respect of that property. According to the plaintiffs, the defendant-mortgagees either did in fact realise the rents and royalties in respect of the Natundih property as well or should be presumed to have done so, as they have deliberately suppressed their account books, and they should be made liable to account for the same as well.

I will first deal with the points raised in the main appeal. I am of the opinion that the defendant-appellants should succeed in their contention that neither section 5 nor section 7 of the Money Lenders Act can be made applicable to the suit out of which this appeal has arisen. That section 5, cannot be applied is conceded. Section 5 deals with rates of interest in connection with a “suit brought by a money-lender in respect of a loan advanced after the commencement of this Act” (namely, the Money Lenders Act). Admittedly the loan in the transaction, with which we are concerned in this case, was advanced long before the commencement of the Money Lenders Act, as it had been advanced in the year 1922, Hence section 5 of this Act can have no application.

Coming now to section 7 of the Act, it seems to me that the provisions of this section also can have no application in the present case. This section reads as follows:—

“Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any agreement, no Court shall, in any suit brought by a money-lender before or after the commencement of this Act in respect of a loan advanced before or after the commencement of this Act or in any appeal or proceedings in revision arising out of such suit, pass a decree for an amount of interest for the period preceding the institution of the suit, which, together with any amount already realised as interest through the Court or otherwise, is greater than the amount of loan advanced, or, if the loan is based on a document, the amount of loan mentioned in, or evidenced, by such document.”

Emphasis must be laid on the words no Court; shall, in any suit brought by a money lender…………pass a decree for an amount of interest……………” Clearly the suit on the facts of which this section can be made applicable must have been brought by a money lender. In the present case before us the suit was not brought by a money lender but by persons who are purchasers of the equity of redemption in execution of a mortgage decree obtained by certain, mortgagees. The money lenders in the suit are not the plaintiffs but the defendant-appellants. This difficulty seems to have been realised in the court below, but the learned Subordinate Judge referred to Bengal Money Lenders Act, 1940; clause (c) of sub-section (22) of section 2 of which Act provides that a suit to which that Act applies includes a suit “for the redemption of any security given before or after the commencement of this Act in respect, of any loan advanced whether before or after the commencement of this Act. The Bengal Act, therefore, applies to all suits brought for redemption regardless of who is the plaintiff. In the Bihar Act, on the other hand, there is provided a limitation. The learned Subordinate Judge, however, was of the opinion that the Bihar Act had been enacted to give relief to a borrower and that section 7 of the Bihar Act would be made applicable in suits which were not brought by a money lender. While I think that it is harsh upon the borrower not to get relief when he himself desires to pay the debt, this relief being only available to him if he is sued by the money lender for the debt, and although the intention of the legislature may have been to give relief to the debtor in all cases, yet a Court of law is not concerned with what was or might have been the intention of the legislature. The Court has to construe the provisions of the Act and give effect to the meaning of the plain words of the section. The intention of the legislature cannot be invoked to override the express provisions of a section and, in the present case before me, of section 7 of the Bihar Money Lenders Act. The terms of section 7 of the Bihar Act are of a mandatory nature and the words admit of no ambiguity. The condition for the application of that section is that the suit must be brought by a money lender in respect of a loan advanced. I am supported in my view by certain observations made in the case of Bishunlal Singh v. Jagarnath Singh*. The learned Advocate for the plaintiff-respondents' however, referred to the case of Ramnandan Prasad Narain Singh v. Kulpati Shri Mahanth Goshwami Madhmanand Ramji in support of his contention that section 7 of the Bihar Money Lenders Act, 1939, can be made applicable even in suits which have not been brought by money lenders. In my view this decision does not support that contention. In that case their Lordships were considering the applicability of section 7 of this Bihar Act of 1939. When the executing court was proceeding under section 11 of the Bihar Money Lenders Act of 1938, section 11 of the Act of 1938 having been re-enacted as section 7 of the Act of 1939, their Lordships held that, as section 11 had been re-enacted as section 7 in the Act of 1939, the appellants before them, who were the judgment-debtors, were entitled to claim the benefit, of that provision in the new Act. The question of the applicability of section 7 of the Act of 1939 on the facts of that case was by itself not before their Lordships. I am therefore, of the view that this case is of no assistance to the plaintiff-respondents. I would accordingly hold that the learned Subordinate Judge was in error in reducing the interest payable to the defendant-appellants by applying the provisions of section 7 of the Bihar Money Lenders Act of 1939.

It was then argued that the interest, as mentioned in the mortgage bond, of 24 per cent compoundable with annual rests was penal and excessive and ought to be reduced. Some cases were placed before us on behalf of the plaintiff-respondents to show that the Courts have in appropriate cases reduced the interest from that which had been mentioned in mortgage bonds on the ground of its being excessive and penal. The learned. Advocate for the plaintiff-respondent's submitted that the provisions of section 16 of the Contract Act might be applied in this case, Clause (1) of that section explains that a contract can be said to be induced by “undue influence”, namely, where the relations subsisting between the parties are such that, one of the parties is in a position to dominate the will of the other, and uses that position to obtain an unfair advantage over the other, and clause (3) of that section states that where a, person who is in a position to dominate the will of another, enters into a contract with him and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. The argument was that the transaction in this particular case was entered into by undue influence. It may be stated at once that there is no material on the record nor any evidence to come to any such conclusion. It is impossible to say that this particular transaction was entered into by “undue influence” or that the mortgagees were in a position to dominate the will, of the mortgagor. I do not think, therefore, that the provisions of section 10, Contract Act can be made applicable to the facts of this case.

The argument then turned to section 3 of the Usurious Loans Act, 1918. Clause (1) of this section provides that where, in any suit to which this Act applies, the Court has reason to believe (a) that the interest is excessive; and (b) that, the transaction was as between the parties thereto, substantially unfair the Court, may exercise certain powers as provided by that section, for example, passing an order for the re-opening of the transaction. As will be noticed, two conditions are essential for the application of this section, namely, (a) that the interest is excessive and (b) that, the transaction was substantially unfair, and the explanation to that section provides that the interest, may of itself be sufficient evidence that the transaction was substantially unfair. The interest may be excessive but it must be such that a Court may consider that the transaction was substantially unfair, that is to say, that the rate of interest may be so monstrous as to show that the transaction was harsh and unconscionable by itself. As I have already said, there is no evidence to show that the lender was in a position to exercise such influence as to dominate the will of the borrower. Mere excess of interest, by itself, can give no right to re-open any transaction but it may be such as to render the transaction unconscionable. To borrow a phrase from an Irish case Thomas v. Ashbrook.

“……As to excess: the interest or charge may be ex facie so exorbitant as to make the conclusion irresistible that an unfair advantage has been taken of desperate necessity or reckless improvidence; the thing not merely speaks for itself, but shouts.”

Furthermore, the re-opening of a transaction is for the purposes of relieving the debtor of all liability in respect of the excessive interest. The relief is to the debtor. In the present case the relief sought is by the plaintiffs, who are not the debtors: they are purchasers of the equity of redemption of the mortgagor and thus not themselves debtors.

We were not referred to any evidence to support the contention about the unfairness of the transaction but reliance was placed on the explanation to sub-section (2) of section 3 of the Usurious Loans Act and our attention was drawn to the rate of interest itself, i.e 2 per cent per month, compoundable with yearly rests. Reference was made to certain decisions which it is urged support that conclusion in the present, case. Rukmini v. Mohib Ali Khan is an authority under section 16 of the Contract Act and not the Usurious Loans Act. In Kharag Narayan v. Dwarka Prashad Singh 24 per cent, per annum with yearly rests was reduced to 12 per cent, simple but, apparently, there was evidence before the court that 12 per cent, simple was the market rate. Butto Kristo Roy v. Gobindaram Marwari was not a case of loan at all but of interest on arrears of rent. In Chota Nagpur Banking Association Limited, Purulia v. Lal Mohan Trivedi* the point was not contested before the High Court and the report does not disclose what the grounds were on which the contract rate of 10 per cent, per annum was reduced to 9 per cent, per annum. In Lala Chuni Lal v. Udai Prakash also the report does not disclose the grounds on which an interest of 24 per cent, per annum compoundable with 6 months rests was held to be within the mischief of section 3, but the judgment of the Privy Council shows that an amount of Rs. 6,000 was the principal of the loan in suit, and as much as Rs. 2,800 was due on account of interest due to the creditor on previous transactions between the parties. This is a circumstance which materially affects the fairness of the rate of interest [vide Prayag Lal v. Palakdeo Narain Singh]. On the other hand, in the case of Mukteswar Trigunait v. Satya Charan Srimani an interest of 18 per cent, per annum compoundable every 6 months was held not to attract the operation of section 3. In these circumstances, it seems to me to be impossible to reduce the rate of interest.

The question, however, remains whether any relief can be given to the plaintiffs at all in the matter of interest. Although the circumstances point to the conclusion that the interest as claimed is high but as it cannot be held that the transaction was unfair as between the parties to the suit, no relief can be given under the Usurious Loans Act. The Court, however, may take the high rate of interest into consideration in exercising its discretion as regards pendente lite and future interest. The granting of pendente lite and future interest lies in the discretion of the Court [See Jaigobind Singh v. Lachmi Narain Ram. In the case before us the mortgagees will be getting a high rate of interest for a considerable period of time. While therefore holding the defendant-appellants to be entitled to interest at the bond rate from the date of the mortgage up to the date of the institution of the suit, I would allow them interest, pendente lite and future, at 4 per cent, simple per annum; the period of grace shall be six months from the date on which the Subordinate Judge confirms and countersigns the account taken by the Commissioner. Their appeal is accordingly allowed.

Coming now to the cross-objection of the plaintiff-respondents, the point for consideration, as I have already stated, is whether the defendants can be found to have realised the rent and royalty in respect of the Natundih property and thus be liable to account for that property as well. The learned Subordinate Judge has found this part of the case in favour of the defendants, namely, that they never realised any profit out of the Natundih property and that therefore they are not liable to account for the same. The circumstances are these. It was on the 14th February, 1921, that the coal mining rights of village Natundih, as dsecribed in Schedule B of the plaint, had been leased out by Ran Bahadur Singh to one Damodar Prasad Lala, and it was on the 29th November, 1922, that Ran Bahadur Singh executed an anomalous mortgage in favour of defendants 1 to 4(a) of both villages Natundih and Kenduadih to secure a loan of Rs. 15,000. Under this mortgage deed (exhibit 9) the rights of the mortgagees, these defendants, were to recover rents and royalties from the leasehold properties, the minimum royalty for, Kenduadih property being Rs. 1,926 and for Natundih property Rs. 4,720 per annum. The defendants' case is that they never came into possession of Natundih and were thus not able to realise any rent or royalty in respect of this property. Now after executing the lease in favour of Damodar Prasad Lala on the 14th February, 1921, and before executing the mortgage deed in favour of the defendant-appellants on the 29th November, 1922, it appears that Ran Bahadur Singh had, in a parwana [exhibit A(1)], written to Damodar Prasad Lala, to keep in abeyance, the payment of the minimum royalty in respect of the Natundih property till the construction of a railway line in the neighbourhood of Natundih. This parwana [exhibit A(1)], which is dated the 14th August, 1922, sent by Ran Bahadur, Singh to Damodar Prasad Lala, concludes with the following sentence:—

“I on taking Rs. 500 (Rupees Five hundred) from you, extend the period of payment of minimum royalty till railway line is constructed in the neighbourhood of the said mauza (Natundih) i.e I exempt minimum royalty up to that period.”

In spite of this exemption, on the 29th November, 1922, Ran Bahadur Singh mortgaged Natundih to the defendant-appellant and stated in the deed (exhibit 9) thus:—

“Out of the properties mentioned in the said Schedule (meaning Natundih property), Rs. 4,720 is due to me as annual minimum royalty in respect of the property mentioned in item no. 1, and Rs. 1,925 is due to me as annual rent in respect of the property mentioned in item no. 2 of the Schedule (Kenduadih); the said minimum royalty, and the jama shall belong to you. You from this day, shall acquire the right to make realisations from my tenants mentioned in the Schedule and you shall realise the same amicably or by instituting suit if necessary………………. Whatever amount you shall realise, the same shall be credited towards the interest payable to you, and then should there be any amount left as excess and after payment of the same (the interest), the same shall be credited towards the principal.”

The argument on behalf of the defendant-appellants was that, as Ran Bahadur Singh had already agreed with Damodar Prasad, Lala to exempt the payment of the minimum royalty in respect of Natundih till the construction of the railway line, these defendants as mortgagees were not able to realise anything from Damodar Prasad Lala in respect of the Natundih property.

There then followed another letter (exhibit A) from Damodar Prasad Lala to the defendant-appellants, which is dated the 25th June, 1923. This letter appears to be a reply to a letter sent by these defendants demanding the minimum royalty in respect of Natundih. Damodar Prasad Lala said in this letter that the matter had already been finally settled between him and Ran Bahadur Singh thus: “That no minimum royalty and commission would be charged against me for the property until the introduction of railway line within close vicinity, of the property. That as I have not begun any work in the property and as there has been no railway line made and introduced near the property, Raj Kumar Thakur Ran Bahadur or anybody on his behalf; is not entitled to claim any minimum royalty or commission from me for the property in question”. The defendant-appellants after receipt of this letter wrote to Ran Bahadur Singh, the letter being [exhibit A(2)], on the 5th July, 1923, informing him of this position and telling him that Damodar Prasad Lala had written to say that so long as the railway line was not constructed over the colliery, he should have neither to pay any minimum royalty nor was he liable therefor, and the letter ended, with the sentences:—

“I am writing this for your information. Please write as to what we should do in the matter. We are not in any way liable for this amount. Please do what is proper.”

In these circumstances, it was contended on behalf of the defendant-appellants that they cannot be made liable to account for any rent or royalty in respect of the Natundih property.

There is then another document to which a reference must be made, namely, a patta [exhibit 7(b(b)], dated the 23rd December, 1926, executed by Ran Bahadur Singh in favour of Damodar Prasad Lala. By this patta the minimum royalty for Natundih has been reduced from Rs. 4,720 to Rs. 1,000, and the reason given in this document is as follows:—

“Now you have stated that on account of taking settlement at a very high salami and that as you could not carry on colliery work during the term of settlement on account of railway line being situated at a great distance, you have been put to great loss and that even if railway line is constructed in the neighbourhood in future, it would be impossible for you to carry on colliery work on payment of such high minimum royalty and that it was not possible for you to settle the same with others. Hence you prayed to me that unless the said minimum royalty was reduced, you would be put to great loss. Therefore considering your proposal to be reasonable and taking Rs. 1,000 (One thousand) as salami from you for reducing the amount of minimum royalty, I execute this modified patta and stipulate that 1 reduce the annual minimum royalty of Rs. 4,720 (Rupees four thousand seven hundred and twenty) as fixed in paragraph 7 of the registered patta, dated the 12th Falgoon, 1327, B.S, and fix Rs. 1,000 (Rupees one thousand) as the minimum royalty in lieu thereof…………You shall pay from year to year the said minimum royalty of Rs. 1,000 (One thousand) from the end of 1927 of the English calendar year……………….. This modified patta shall be treated as a part of the original patta and we both the parties as well as our heirs and successors-in-interest in succession shall remain bound by its terms up to the term.”

The contention on behalf of the defendant-appellants was that this reduction of the minimum royalty from Rs. 4,720 to Rs. 1,000 was behind their back and no information was sent to them by Ran Bahadur Singh and that they were not bound by that reduction. It was also argued by reason of the closing sentence that the meaning of this patta ([exhibit 7(b)] was that although the minimum royalty was reduced to Rs. 1,000, yet its payment was kept in abeyance altogether till the construction of the railway line near Natundih, and, since no such construction had been made, the lessee was not bound to pay any royalty and the mortgagees, defendant-appellants, were not able to realise any on that account. This argument might have had some force if the mortgagees, the defendant-appellants, had taken no notice whatsoever of this reduction and had stood by their claim to demand the original minimum royalty, namely, Rs. 4,720. The only witness examined on behalf of the defendants was Phani Bhusan Choudhry and he is a servant of the defendants. It is clear from his evidence that the defendants were aware of the reduction and had made attempts to realise the same from Damodar Prasad Lala, and if they did not succeed in realisation they, could have done so by due diligence. This witness stated: “We tried to realise the reduced royalty but failed to do so”. It was suggested to him that the non-realisation was on account of the laches of the defendants, but this suggestion was denied. Although the defendants had brought a suit in respect of the Kenduadih property for realisation of their royalty, they did nothing for the realisation of the royalty in respect of the Natundih property, for, the same witness stated as follows:—

“We had brought a suit against Butto Kristo Roy of Kenduadih for royalty and also against Baidyanath Mandal. We did not sue Damodar Lala because we thought that the arrears would not be realised from him.”

The explanation, therefore, is that Damodar Prasad Lala was not in a position to pay royalty and hence he was not sued. But the same witness in his cross-examination failed to substantiate that explanation, as he admitted:—

“Domodar Lala is a substantial man. He has got a pucca residential house and collieries. He was manager of Nawagarh Estate and afterwards became Dewan.”

By this evidence it is apparent that the realisation could have been made from Damodar Prasad Lala and the mortgagees, the defendant-appellants, failed to take steps to realise the royalty from him for no satisfactory reason. In the mortgage bond (exhibit 9) executed in favour of the defendants by Ran. Bahadur Singh, Ran Bahadur Singh had stated:

“You shall possess right and title to the said properties like me and shall be competent to realise the amount due to you under this mortgage bond by selling the same,”

and then they were given the right to realise the minimum royalty of the jama. I think that the mortgagees in the circumstances are accountable for the profits of the Natundih property on the footing of wilful default. Under, the mortgage, the mortgagee was entitled to realise Rs. 4,720 and could enforce his demand by bringing the leasehold to sale. But it is evident from the parwana dated 14th August, 1922 and the patta dated 23rd December 1926 that the property was incapable of bearing this amount of minimum royalty. We may take the minimum royalty agreed to be paid from 23rd December 1926, namely, Rs. 1,000, as representing the value of the leasehold, and proceed on the assumption that if the mortgagee had proceeded with due diligence to recover the royalty due from this leasehold he would have recovered the equivalent of Rs. 1,000 a year. To this extent therefore credit should be given to the mortgagor in the accounting between him and the mortgagees—beginning from the expiry of 1927. Under clause (g) of section 76, Transfer of Property Act, a mortgagee in possession “must keep clear, full, and accurate accounts of all sums received and spent by him as mortgagee, and at any time during the continuance of the mortgage, give the mortgagor, at his request and cost, true copies of such accounts and of the vouchers by which they are supported”. The mortgagees in the present case have filed no account whatsoever as probably no such account was kept. An inference, therefore, adverse to the case of the mortgagees must be drawn.

In the court below a contention appears to have been raised on behalf of the defendants that question whether they were liable to account for the Natundih property or not had been directly and substantially in issue in Money Suit no. 568 of 1934 and in Money Suit no. 27 of 1941, and as such these decisions operated as res judicata. The court below did not accept this contention and if was not pressed before us.

In these circumstances, I am of the opinion that the cross-objection filed by the plaintiff-respondents should succeed and the decree of the court below be varied to include the profits realised from the Natundih property in the light of the observations made] in the body of the judgment together with the profits realised from Kenduadih property.

Since success has been partial both in the appeal and in the cross-objection, I would not pass any order as to costs in this Court.

Before I conclude I desire to draw the attention of the court below, to the form in which the decree of that court has been drawn up. The decree in the suit should have been drawn or in the appropriate form to be found in Appendix D of the First Schedule of the Civil Procedure Code.

Reuben, J.:— I agree.

K.D

Appeal and cross-objection allowed.