Westropp, C.J:— The general principle as to redemption and foreclosure is that, in the absence of any stipulation, express or implied, to the contrary, the right to redeem and the right to foreclose must be regarded as co-extensive: Sakharam v. Vithul Lakha Gouda(1), Lila v. Vaswdev(2), Brown v. Cole(3), (and see per Lord Kings down in 7 Moore's Indian Appeals, 355). It is admitted that, under the mortgage to the second defendant Vadju Raghu, he could not foreclose that mortgage until the expiration of ten years from its date (the 30th of April, 1870), and we think that the mere use of the Marathi word “ant,” which signifies “within,” is not a sufficient indication of an intention of the parties that the ordinary principle should not prevail with respect to the mortgagor, and that he might redeem in a less period than ten years. We should expect some stronger expression than that word, if the intention were that the mortgagor's position was to be more favourable than that of the mortgagee. The plaint was filed on the 30th July, 1877, i.e, about two years and nine months before the expiration of the ten years. This suit was, therefore, prematurely instituted, and is accordingly unsustainable. That being so, the decree of the Subordinate Judge was wrong, not only so far as regards the defendant Vadju Raghu, but also as regards the defendant Narhar, against whom no mesne profits were recoverable, inasmuch as the plaintiff could not redeem until the ten years had elapsed. The decree of the District Judge is affirmed. The plaintiff must pay to the defendant Vadju Raghu his costs of suit and of both appeals and to the defendant Narbar's son his costs of the second appeal only. The conduct of the deceased defendant Narhar himself has been such that his son and heir must bear his own costs of the suit and of the regular appeal.
Decree affirmed.