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Judgment
The appellant in this case is a judgment-debtor against whom a preliminary mortgage decree Was obtained on the 18th of September 1911. On the 13th of December 1914 the decree-holders put in a petition to make the decree absolute. The appellants, thereupon, put in a petition to the effect that the decree had been satisfied in part by an arrangement out of Court, this arrangement being that the value of an elephant taken by the decree-holders from the judgment-debtors before the making of the decree absolute should be credited to the accounts to be taken on the mortgage. The lower Court refused to take cognizance of this plea on the ground that it could not be recognized at that stage. Against that decision this appeal is filed.
We are of opinion that the order of the learned Subordinate Judge cannot be supported. It is true that under Order XXXIV, Rule 5, it is contemplated that all payments made upon a preliminary decree should be paid into Court. There is nothing in the section to justify the view that Order XXIII, Rule 3, does not apply to adjustments of accounts made between the date of preliminary decree and the date on which the accounts between the parties are finally settled. The question of what is actually due upon the mortgage on the date of the final taking of accounts is clearly a matter relating to the suit. We, therefore, direct that the case be remanded to the lower Court for an enquiry into the allegations made in the judgment-debtor''s petition and to settle the account upon the result of that enquiry. The respondents will pay the costs of this appeal. Hearing fee three gold mohurs.