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Judgment
The first point raised is that the set-off was wrongly allowed, and in support of this contention we were referred to the decision in Raghu Nath
Das v. Ashraf Husain Khan ILR 2. All. 252. We do not think the case has any application. The point here raised was not there taken and that
decision was prior to the passing of the Transfer of Property Act. We agree with the Sub-Judge that Section 76 applies. The question is one of
procedure and the estimation of the loss caused to the mortgagor by the failure of the mortgagee to make necessary repairs is an item which must
be considered in determining the accounts in settlement of the mortgage.
It was a paramount duty for the mortgagee to make such necessary repairs, and we cannot accept as valid the excuse that to do so would
diminish his interest or profits.
We think the Subordinate Judge rightly held that as the mortgagee continued in possession after 13th June 1878 the profits must be regarded as
having been enjoyed in lieu of interest.