JAIN, J. - (1.) THIS second appeal is by the mortgagees and the receiver to their estate against the final decree passed by the Civil Judge Ajmer and affirmed by the District Judge, Ajmer on 28-1-1970 in a mortgage suit for redemption.
(2.) BRIEFLY stated the facts are that the temple at Hathi Bhata, Ajmer, was founded by Madhodas and he installed the three idols who are three plaintiffs No. l to 3 Shri Thakur Saligramji Maharaj, Shri Thakur Baba Hathi Bhata ji Maharaj and Shri The Gordhannathji Maharaj. The members of the family acquired various properties for the benefit of the three deities and management of the temple vested in a Mahant. Mahant Premdas has been the Mahant since 1928 and looked after management of the temple and the properties under it. One Lachhmanram Bairagi of Pushkar mortgaged he properties in suit with possession with R. B. Seth Mool Chand and Seth Nemichand, the predecessors of the defendants No. 1 to 4, namely Seth Bhagchand Soni, Kr. Prabhachand, Kr. Nirmalchand and Kr. Sushilchand by a registered mortgage deed on 23-7-1885. The property mortgaged consisted of residential house at Pushkar and some agricultural land at Ajmer. The rights of the original mortgagor in the said properties were purchased at a court auction by Nandramdas on 10-7-1890 as Mahant of the three plaintiff deities referred to above. Plaintiffs No. 4 and 5 claim to be the heirs and legal representatives of Mahant Nandramdas. On 8-7-1944 Mahant Premdas sold out the equity of redemption to defendants Nos. 1 to 4, successors of the original mortgagees. Sarjudas and Had Ramdas, plaintiffs Nos. 4 and 5 and the three deities instituted the suit alleging that the transfer of the equity of redemption by Mahant Premdas in favour of defendants No 1 to 4 was null and void, being without authority and legal necessity and they also prayed for redemption of the mortgaged property. It was also set up by the plaintiffs that contrary to the terms of the mortgage-deed, the defendants No. 1 to 4 converted the Ajmer property which consisted of agricultural land into a residential building containing shops as well. Defendants No. 1 to 4 contested the suit on the assertion that the plaintiffs No. 4 and 5 were not entitled to maintain the suit either on their own behalf or on behalf of the three deities. According to the averments, Nandram Das did not acquire the property for the benefit of plaintiffs No. 1 to 3. It was further alleged that the sale-deed in their favour on 8-7-1944 by Mahant Premdas was not invalid, Assuming that he and plaintiffs No. 4 and 5 were members of a joint Hindu family, the sale transaction was a prudent act on behalf of Mahant Premdas as head of the family. As regards the improvements and additions to the mortgaged property, it was alleged that they were made under the terms of the mortgage and the plaintiffs are not entitled to redeem them without paying back the value of the said additions and improvements. The learned trial Judge dismissed the plaintiffs' suit. He held that it was not proved that Madhodas had founded the Hathi Bhata Temple and installed the idols namely the plaintiffs No. 1, 2 and 3 therein. According to him, it was also not proved that plaintiffs No. 4 and 5 and Mahant Premdas defendant No. 5 were descendants and heirs of Madhodas or that they were the members of the joint Hindu family family. He also found that Nandramdas was the Mahant of Hathi Bhata temple, but the purchase of the equity of redemption at the court auction was not for the benefit of the three deities. Against this judgment and decree, the plaintiffs went in appeal before the Judicial Commissioner, Ajmer. By his order dated 28-7-1953 he accepted the appeal and held that Nandramdas purchased the mortgagor' rights for the benefit of the three deities and the sale-deed executed by defendant No. 5 Mahant Premdas on 8-7-1944 in favour of defendants No. 1 to 4 was null and void and inoperative against them. He also granted a preliminary decree in terms of O. 34, r. 7 of the Code of Civil Procedure, allowed the plaintiffs six months' time or such further time as may be allowed by trial court to pay the amount that may be found due on the mortgage and directed that on deposit of the amount found due, the plaintiffs will be entitled to possession of the mortgaged property, after a lapse of period of three months during which time defendants No. 1 to 4 shall be entitled to remove all materials and constructions put up by them on the Ajmer property. This appellate judgment and decree was again the subject matter of challenge in the Supreme Court at the instance of the defendant mortgagees. The appeal was dismissed on 14-12-1961. For purposes of this appeal the following facts also deserve to be noticed. After the preliminary decree was passed by the Judicial Commissioner, Ajmer, on 28-7-1953, a decree was framed. In pursuance of that decree, the matter went before the sub Judge First Class, Ajmer Perhaps with a view to comply with the order contained in the preliminary decree, the then learned sub-Judge First Class Ajmer by his order dated 8-9-1953 recast the decree, appointed Shri Mukandram as Commissioner to take accounts directing him to determine the amount due to defendants No. 1 to 4 on the basis of the mortgage deed. He was also directed that in taking the accounts, no amount was to be allowed to the mortgagees for improvements. He, however, permitted adjustment of interest and recovery as stated in para 6 (e) of the plaint. The Commissioner was also required to submit his report within three months. The matter remained with the Commissioner for quite a long time and after the case was decided finally by the Supreme Court, he applied to the sub-Judge on 5-11-1963 that the decree recast by the sub-Judge did not appear to be in conformity with the decree passed by the Judicial Commissioner. The Civil Judge, Ajmer, who at that time dealt with the case ordered that the accounts will have to be taken up with regard to the Pushkar property only as the order of the Judicial Commissioner referred only to the Ajmer property with regard to which it was held that the mortgagees have failed to prove the cost of the improvements. He failed to give a decision as to whether the decree framed by the Sub-Judge was in accordance with the decree passed by the Judicial Commissioner. Both the parties being aggrieved came in revision. Kan Singh J disposed of the petitions of the parties by his order dated 18-9 1968. He held that the Sub Judge Ajmer had no right to frame a decree of his own accord. The decree passed by the Judicial Commissioner is the one final between the parties. He, however, held that in pursuance of the decree of the Judicial Commissioner, the Commissioner was rightly appointed by the Sub-Judge for carrying out the orders under the said decree. He accordingly set aside the decree framed by the Sub-Judge on 8-9-1953 and up-held the appointment of the Commissioner who was to make a report in accordance with the direction given in the decree. The matter then went back to the Commissioner to proceed further in accordance with the order passed by this Court. The plaintiff decree holders on 24-10-1968 submitted an application in the court of Civil Judge, Ajmer stating that after the decree was upheld by the Supreme Court, there was nothing left for the Commissioner to take accounts and determine the amount due to the mortgagees. The principal amount due to the mortgagees is admitted and they have failed to prove the cost of the improvements and as such, the mortgagors may be permitted to deposit the mortgage money after deducting the amount of the costs allowed to them and a final decree be prepared in terms of O. 34, r. 8 C. P. C. This application was opposed by the Receiver who had been, in the meanwhile, appointed to the estate of the mortgagee defendants No. I to 4. It was alleged on behalf of the mortgagees that in terms of the decree passed by the Judicial Commissioner, the trial court was bound to ascertain the exact amount due on the mortgage and then alone the mortgagors could be directed to deposit the amount found due. According to the submission, the Commissioner was rightly appointed to take accounts of the income received from the mortgaged property and expenditure incurred in that regard in terms of the mortgage and he was also bound to ascertain the cost of the improvements made in Pushkar property. It was, however, conceded that the question of cost of improvements with regard to the Ajmer property had been finally adjudicated upon by the Judicial Commissioner and, therefore, the appellants are not asking for that. The learned Civil Judge held that the appointment of Commissioner was not necessary in the circumstances of the case as no account of anything has to be taken by him and he directed the plaintiffs decree holders to deposit the sum of Rs. 5000/-, the mortgage money, after deducting from it the amount of costs allowed to them in the litigation. He also ordered the final decree to be prepared in accordance with the said direction. This order was challenged by the Receiver and the mortgagees in appeal before the District Judge, but they met with no success and the order passed by the Civil Judge was upheld with costs. It is against this order that the Receiver and the mortgagees have come in second appeal. I have heard Shri C. L Agarwal on behalf of the appellants and Shri M. B. L. Bhargava for the respondents. There is no controversy between them that the decree passed by the Judicial Commissioner is final and binding on the parties. They also agree that the decree cannot be varied and the decree as such has to be given effect to. Thus the only question for determination is as to what is the true import and meaning of the decree passed by the Judicial Commissioner on 28-7-53. On the question of interpretation of this decree there is a sharp difference between the learned counsel for the parties. On behalf of the appellants it is submitted that the learned Judicial Commissioner while passing the preliminary decree did not declare the amount due to the mortgagee on that date. He left it to the trial court to ascertain the amount due under the mortgage. He has invited my attention to the form in which the decree was passed On the other hand, the stand of Mr. Bhargava is that the mortgagees' claim with regard to the improvements and additions made in the mortgaged property was not established and it was held by the Judicial Commissioner that they are not entitled to any compensation for the improvements made by them. It was also urged by him that the mortgage amount was admittedly Rs. 5000/ -. The mortgagees failed to set up a claim that anything else by way of interest was due to them. In this view of the matter, it was argued that there was nothing left for an account to be taken of to ascertain the amount due on the mortgage to the mortgagees. The direction of the learned Judicial Commissioner can be given effect to without taking an account and by asking the plaintiffs to deposit the sum of Rs, 5000/-, the mortgage amount minus the amount of the cost that was recoverable from the mortgagees as a result of the decree passed in the case. The learned Civil Judge accepted the contention of the respondents. He was of the opinion that the controversy as regards the improvements in both the mortgaged properties was raised by the parties in the suit for redemption and issues No. 5 and 6 covered them and the finding of the learned Judicial Commissioner was that the mortgagees were not entitled to any compensation, with regard to the improvements as they had failed to prove them. This finding was upheld by the District Judge, as already noticed above. The contention on behalf of the mortgagees has been throughout that the question of improvements made in the Pushkar property was not the subject matter of any issue and the finding of the learned Judi-cial Commissioner did not at all deal with the improvements made in the Pushkar property or the cost incurred in that property. According to their submission, issues No. 5 and 6 only related to the improvements made in the Ajmer property. From a reference to paragraph No. 5 of the plaint it appears that the properties subject to mortgage were detailed as one; a single storeyed Haveli, two nohras (enclosures), one well inside the enclosure situate at Pushkar in Basti Khurd. This was the property situated at Pushkar and two; agricultural land situate at Malpura Hathi Bhata Ajmer. Khasra numbers of the agricultural land were specified as 2881, 2812, 2883 and 2884. Out of them, the first three Khasras were shown as Gair Mumkin. In para No. 8 of the plaint it was stated that contrary to the terms of the mortgage deed the defendants converted the agricultural land situated at Hathi Bhata, Ajmer into residential one and put up buildings and shops on it. It was claimed that they are entitled to redeem the same without payment of these unauthorised constructions. For the sake of convenience, the mortgaged property will be referred to hereinafter as the Pushkar property and Ajmer property In answer to this allegation with regard to the Ajmer property, the defendants admitted to have improved the same and put up residential buildings and shops, but they did not admit that the constructions were made illegally or contrary to the terms of the mortgage, They also disputed the claim of the plaintiffs that they were entitled to redeem the same without first making payment for the said improvements together with interest thereon. It was also alleged in para No. 8 of the written-statement that the improvements made on the Ajmer property were with the tacit consent of the then Managers of the temple at Hathi Bhata. With regard to the Pushkar property, the mortgagees further contended that they made additions to the mortgaged Haveli to the extent of several thousands under the terms of the mortgage-deed and the plaintiffs are not entitled to redeem without repaying them the value of the said additions together with interest thereon. Thus the improvements in the Ajmer property was in admitted case of the parties. The question which remained for decision was whether they were made contrary to the terms of the mortgage deed and they were made with the tacit consent of the mortgagors and if so, the mortgagees were entitled to the payment of the value of such constructions. With regard to Pushkar property, it was not admitted by the mortgagors as this claim was only set up by the mortgagees in their written-statement and the plaintiffs had filed no replication. Issues No. 5 and 6 are admittedly the relevant issues and are reproduced below : "5. Are the constructions put up by the defendants contrary to the terms of the mortgage-deed ? If so, are the constructions put up with the tacit consent of the managers of Hathi Baata temple and under the circumstances as alleged in para 8 of the written statement ? 6. If the amount as alleged has been spent, is the defendant entitled to it and if so, how much ?" From the very language of issue No- 5 it is more than clear that this issue refers to the constructions made on the Ajmer property. By no stretch of imagination it can be read to cover the question of improvements made in Pushkar property. First part of issue No 5 is a part of the pleading of the plaintiffs and the second part of the issue is the pleading of the defendant-mortgagees that the constructions were put up with the tacit consent of the managers of the Hathi Bhata temple. Issue No. 6 starts with the word "if". That shows that it has to be read in context of Issue No. 5. That means: if the defendants are able to prove the second part of issue No. 5, they have further to show that they are entitled to it and if so, to what extent. To my mind, this issue does not cover the controversy raised with regard to Pushkar property. I find further support in my view when I find that the allegation with regard to improvements in Pushkar property was not an admitted case of the parties. If the court meant to settle an issue with regard to that, it must have at the outset settled an issue as to whether improvements have been 'made in the Pushkar property and then the next part of the issue would have been that if so, were the mortgagees entitled to make such constructions and if so, what was spent by them on such constructions and to what extent they are entitled to it ? Issue No. 6 does not obviously cover the claim set up by the defendants with regard to Pushkar property. Now, I will deal with the matter as to how the learned Judicial Commissioner, who passed the preliminary decree, dealt with the matter covered by these two issues No. 5 and 6. The relevant discussion in this regard is reproduced below in full : "the next question for my determination is as regards the improvements made by the mortgagees. The character of the property at Ajmer has been completely changed. In mortgage-deed Ex. P/5 the Ajmer property is described as agricultural land and plot numbers are given. The mortgage deed indicates that plot Nos. 2881, 2182 and 2883 were well irrigated and plot No. 2884 was unculturable. It further provided that during the tenure of the mortgage, the mortgagees would be entitled to make houses in the mortgaged dwelling building and to repair it and in case of agricultural land, they shall be entitled to repair the breakage of the wells etc. The learned counsel for the appellants has urged that this specific term about the well clearly implies a prohibition of repairs and constructions which would change the very nature of the property. It appears to me that it was intended that the agricultural character of the Ajmer property should be maintained. " Then the learned Judicial Commissioner discussed various authorities and then again he resumed the discussion in this manner : "in the present case the character of agricultural land was completely changed. There was no question of preservation or maintenance of the mortgaged property and as such no question of its protection arose. The mortgagees did not while maintaining the agricultural character of the property spend money to preserve the income to the property. They put up residential buildings spending money to an extent which may be said to be improving the mortgagor out of his mortgage. I am of opinion that the mortgagees were not under the terms of the mortgage or under the general law entitled to make the changes and effect the improvements as they did. Tacit consent of the Mahants has also been pleaded. There is, however, no evidence in support of that allegation. It, therefore, follows that the improvements were not made with the express or implied consent of the mortgagor or his successors. There is no evidence on the record as to the cost incurred. I am, therefore, of opinion that the mortgagees are not entitled to any compensation for the improvements made by them. They are, however, entitled to remove the material and for this they will have to be allowed a reasonable time say three months. As the building material has to be removed, the question of adjoining land acquired by the mortgagees need not be considered. " The aforesaid discussion by the learned Judicial Commissioner with regard Issues No. 5 and 6 completely settles the controversy that issues No. 5 and 6 only related to the improvements made on the agricultural land. Not a word has been said about the Pushkar property. If issues No. 5 and 6 referred to the improvements made in the Pushkar property as well and the mortgagees had led no evidence with regard to that, it was legitimately expected of the learned Judicial Commissioner to have said that the defendants have failed to prove that any improvements were made in the Pushkar property or any expenditure was incurred by them in the said improvements. No such observation was made in the judgment. In the judgment of the Supreme Court, I find the following observation relevant to the controversy : "the finding of the appellate court that the improvements made by the appellants in the property mortgaged are inconsistent with the terms of the mortgage is obviously right and is not challenged before us. " These observations are clearly with regard to the improvements which were found by the Judicial Commissioner as contrary to the terms of the mortgage. This certainly refers to the Ajmer property where the agricultural land was converted and residential buildings and shops were put up Ex. P/5 is the mortgage deed which was not disputed in the suit proceedings. The relevant term with regard to the improvements is as follows: "during the tenure of mortgage, the mortgagees will be entitled to make houses in the mortgaged dwelling building and to repair it and in case of agricultural land they shall be entitled to repair the breakage of the wells etc. In the residential mortgaged building some patties of stones, Katlas, stones, etc. are lying; the mortgagees are hereby authorised to make use of them either in building new houses or repairing mortgaged building. The amount, which shall be spent by the mortgagees on repairs or making new houses, shall be payable at the time of redemption of the mortgaged properties together with interest thereon @ R. l/12/- per cent per month as per accounts maintained by the mortgagees. " From this it is very well borne out that in the agricultural land i. e. Ajmer property, the mortgagees were only entitled to repair the breakage of the well etc. But with regard to the Pushkar property, they were entitled to make houses in addition to making repairs of the existing building. They were also authorised to make use of the material lying in the mortgaged property. It was stipulated that the mortgagors would pay the cost of the constructions and the repairs at the time of redemption together with interest mentioned therein. It is not disputed that the defendants had made out a case that they had made constructions in the Pushkar property and spent several thousands of rupees and they also claimed to be entitled to the amount spent by them with interest thereon. From the above discussion, I am clearly of the opinion that Issues No. 5 and 6 do not relate to the case set up by the defendants with regard to the improvements in the Pushkar property. The view taken by the courts below in this regard is wholly erroneous and cannot be sustained. It is thus clear that the question of improvements in the Pushkar property was not investigated and adjudicated by the Judicial Commissioner. This does not, however, resolve the present controversy and I have still to see whether this question can now be gone into after the preliminary decree has been passed by the Judicial Commissioner on 28-7-1953. Order XXXIV of the Code of Civil Procedure refers to suits relating to mortgages of immovable property. R. 7 of that Order relates to preliminary decrees passed in redemption suits. The relevant part of this rule is reproduced below : - (1) In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree - (a) ordering that an account be taken of what was due to the defendant at the date of such decree for - (i) principal and interest on the mortgage, (ii) the costs of suit, if any, awarded to him, and (iii) other costs, charges and expenses properly incurred by him up to that date, in respect of his mortgage-security together with interest thereon; or (b) declaring the amount so due at that date; and (c ). . . . . . . . . . . . . . . . . . . . . . . . "
(3.) APPENDIX D Form No. 7 annexed to the Code of Civil Procedure prescribes a form in which the decree has to be framed Order XLVIII Rule 3 of the Code provides that the forms given in the appendices with such variation as the circumstances of each case may require, shall be used for the purposes therein mentioned. The relevant part of the decree framed in the present case reads as follow : ". . . . . . . . . . . . it is ordered as follows : That the appeal be and hereby is accepted and it is held that the plaintiffs were entitled to a declaration that the sale-deed executed by defendant No. 5 on 8-7-1944 in favour of defendants 1-4 is null and void and inoperative as against them. They are also entitled to a preliminary mortgage decree in terms of Order XXXIV, Rule 7 of the Code of Civil Procedure allowing them as may be allowed by trial court to pay the amount that may be found due on the mortgage and directing that on deposit of the amount found due in court within six months of the date when the amount is so declared, the plaintiffs will be entitled to possession of the mortgaged property after a lapse of a further period of three months during which time respondents 1-4 shall be entitled to remove all materials of constructions put up by them on the Ajmer property. This will not prejudice the right of respondents 1-4 under any other law to remove the materials at any time. The plaintiffs will also be entitled to their costs in both the courts. In case of default in depositing the amount found due the suit will stand dismissed with costs in both the courts and the defendants 1 4 will be entitled to a decree for foreclosure in terms of Order XXXIV, Rule 7, C. P. C. Defendant No. 5 will bear his own costs in both the courts. The decree passed in this case is under sub-rule (1) of Rule 7 of Order XXXIV. It is not under clause (b ). The learned Judge did not declare the amount due under the mortgage on the date of the decree. The mortgage amount was not disputed. If there was nothing left for investigation, nothing prevented the learned Judicial Commissioner to declare the amount due under the mortgage on that date and he could have passed a decree under Order XXXIV Rule 7 sub-rule (1) clause (b) of the Civil Procedure Code. He did not choose to do it. He seemingly left the matter for trial court to complete, as he chose to say that the plaintiffs are allowed six months' time or such further time as may be allowed by the trial court to pay the amount that may be found due on the mortgage and directed that on deposit of the amount found due in the court within six months of the date when the amount is so declared, the plaintiffs will be entitled to possession of the mortgaged property after a lapse of a further period of three months during which time respondents No 1 to 4 shall be entitled to remove all materials of construction put up by them on the Ajmer property. This brings me to the question as to what was left to be completed by trial court. In this regard, the contention of Mr. Agarwal is that the trial court can order the taking of accounts with regard to the interest payable on the mortgage money, the receipt of rents by the mortgagees and the expenses properly incurred by them with respect to mortgaged properties. The submission of Mr. Bhargava on the other hand is that no direction has been given in the preliminary decree with regard to the taking of any accounts and as such no fresh direction can now be given by the trial court in that regard, After having given a very thoughtful consideration to the rival contentions, I am of opinion that the learned Judicial Commissioner has definitely left something to be done by the trial court and it can go into those questions which were raised in the suit but were not investigated and adjudicated upon, It is not, however, open to the trial court to investigate those questions which were not raised earlier in the pleadings. According to the mortgage deed, the mortgagees were entitled to recover the rent of the residential buildings and produce of the agricultural land and the same was to be adjusted towards interest, chowkidari charge on the mortgaged property situated in Pushkar and for payment of the land revenue of the said land. The account of the rent and produce of the land was to be cleared every six months. At the time of rendering of the account, if the income from the rent and produce of the land felt short of the amount of interest, chowkidari charges and the amount of land revenue, in that case the mortgagees were liable to pay the deficit. But in case the income was in excess, the excess amount after meeting the above expenses was to be adjusted towards the principal advance. If at the time of rendering account, the deficit amount is not paid by the mortgagors, the said amount shall be deemed to be the principal amount and shall bear interest at the rate of Rs. 1/12/- per cent per month. In this regard, no claim was set up by either party. The mortgagees as well did not say that the receipts were less than the amount of interest and the mortgagors were liable to pay any deficit amount and that having not been paid, they are entitled to interest on that amount. Likewise, the mortgagors did not set up a claim that the receipts by the mortgagees were in excess. They claimed redemption of the mortgaged property on payment of Rs 5000/ -. There being thus no claim in that regard in the suit; it is not open to the mortgagees to ask the Court for taking of an account of interest, chowkidari charges and land revenue paid by them and the receipt of the rent of the residential building and produce of the agricultural land. This contention was raised before the learned Civil Judge but was not taken up before the learned District Judge as observed by him in his order. However, the order by the Civil Judge in this regard is correct, and I affirm the same. I accordingly hold that the trial court cannot ask the Commissioner to take account of the receipts and expenditure in accordance with the term of the mortgage deed referred to above. Next question that needs determination is with regard to the improvements made in the Pushkar property. I have already held above that this question was not investigated in the suit and there was no finding in that regard. If the Judicial Commissioner had passed the decree under Order XXXIV Rule 7 (1 ) (b) and had fixed the amount that was due on that date, it would not have been open to the mortgagees to have reagitated this question. They would have been certainly barred by the doctrine of res judicata or by waiver and it could have been successfully urged against them that they failed to press for an appropriate issue in that regard and if this question was not gone into, it was also open to them to have raised this in appeal before the Supreme Court. But the position has now become different. The decree passed by the learned Judicial Commissioner was upheld as such. The Judicial Commissioner did not declare the amount due on that date and allowed the plaintiffs to deposit the amount as may be found due on the mortgage. It is, therefore, open to the trial court to ascertain the amount due under the mortgage by itself or through the Commissioner The only thing now left is to ascertain if some improvements and repairs have been made by the mortgagees on the Pushkar property and if so, what amount has been spent by them and to what extent they are entitled. In view of the manner the decree has been passed, I find no difficulty to the improvements made in the Pushkar property and the amount spent thereon can be gone into before the final decree is passed. Without ascertaining the value of the constructions and the fact as to how much is due to the mortgagees, it cannot be found as to what is the mortgage amount due under the mortgage. Mortgage money definitely includes the cost of improvements,if properly incurred and in conformity with the terms of the mortgage and the mortgagor must pay that amount along with the mortgage money at the time of redemption. This finding does not amount to giving of a fresh dire-ction in the decree. This is only meant to give effect to the decree as passed by the learned Judicial Commissioner. The mortgage amount has to be found before the plaintiffs can be asked to pay that amount in the court and it can only be ascertained after this question which has been left out either mistakenly or inadvertently, is gone into. By necessary implication the decree passed by the learned Judicial Commissioner is covered by Order XXXIV, Rule 7 (1) (a ). With a view to carry into effect the intention of the learned Judicial Commissioner as contained in the preliminary decree, an account can be ordered to be taken with respect to the expenses properly Incurred by the mortgagees in respect of the mortgaged property. In my considered opinion, this is not illegal and cannot be said to be in contravention of any specific provision of law. The appointment of Shri Mukandram as Commissioner was already upheld by an order of this Court passed by Kansingh J. on 18-9-1968. The Commissioner will go into the question of the improvements made in the Pushkar property and the expenses incurred therein. Learned counsel for the parties were not able to lay their hands on any direct authority on the disputed question of law. However, on behalf of the respondents, Mr. Bhargava has placed reliance on Kaila Bondar vs. Rukhdu Mohan (l), a short note of which is reported in 1959 M. P. Law Journal at No. 66 Page 16. The facts of this case are not reported. The short note is only to the following effect : "in a suit for redemption the mortgagee did not raise any question about the costs of improvements of the mortgaged property and the preliminary decree did not contain any direction with regard to those costs. In final decree proceedings the mortgagee contended that an account of the costs of improvement effected by him should be taken and the mortgagor should be directed to pay that amount along with the redemption sum before he was allowed to redeem the property. " It was held that the question of cost cannot be gone into in final decree proceedings. From the short note referred to above, it appears that the question of cost of improvements of the mortgaged property was not pleaded in the suit. The preliminary decree did not contain any direction with regard to that. If that was so, the question cannot be reagitated in the proceedings of the final decree. I am in respectful agreement with this proposition of law. On this logic alone I have held above that the mortgagees are not entitled to the taking of accounts with regard to the interest and the receipts towards rent and produce as this was not urged by them in the pleadings. As regards the improvements in the Pushkar property, it was specifically pleaded in the written-statement by the mortgagees and according to my finding, no issue was framed with regard to that. The question was not investigated and there was no adjudication in that regard. This decision does not therefore advance the respondents' case. ;