JUDGMENT John Stanley Knight, C.J. and Banerji, J. - This appeal arises out of a suit brought by the plaintiffs respondents for surplus collections alleged to have been received by the defendant as mortgagee of the property of the plaintiffs. The mortgage was made in the year 1850, and a redemption suit was instituted in the year 1905. Before the hearing of the earlier suit an application was made to the Judge before whom the suit was pending, namely, the Munsif of Khurja, for liberty to bring a suit for recovery of surplus collections. This application was made pursuant to the provisions of section 43 of the CPC of 1832, which corresponds with order II, rule 2, of the Code of 1908. The learned Munsif granted the applicants' prayer. The suit for redemption was decreed on the 21st of May, 1908, and on the 21st of August of the same year the suit out of which this appeal has arisen was instituted. The claim in respect of "mesne profits is for a sum of Rs. 5,500. The court below gave a decree in the plaintiffs' favour, and against this decree the present appeal" has been preferred. 2. Several points have been raised by the learned vakil for the appellant, with which it is unnecessary for us to deal. The first and main contention is, that the suit is not maintainable in view of the fact that the present suit was not cognizable by the earned Munsif who gave permission to bring the suit, the amount of the claim being in excess of his pecuniary jurisdiction. It is admitted that the suit for redemption was within the cognizance of the Munsif of Khurja and that he was competent to try that suit. But it is said that he was not competent to give the leave which is contemplated by section 43 of the Code of 1882. That section provides that "a person entitled to more than one remedy in respect of the same cause of action may sue for all or any of his remedies, but if he omits, except with the leave of the court obtained before the first hearing to sue for any of such remedies, he shall not afterwards sue for the remedy so omitted. "We think that this rule contemplated that the leave to bring the subsequent suit should be obtained from the court before which the original suit was pending and that the Munsif of Khurja before whom the suit for redemption was pending was competent to give leave to bring the later suit. We have on the record the order of the Munsif granting that permission. It is dated the 12th of May, 1905. So far as we can see, no other court was competent to give leave to bring the second suit. The suit therefore out of which this appeal has arisen was not a Suit brought contrary to the provisions of section 43, but a suit which the plaintiffs were authorized to bring under that section, they having obtained the permission of the Munsif of Khurja to omit the remedy in respect of which the present suit has been brought and sue for it thereafter. There is no force therefore in this contention. 3. The next contention addressed to us by the learned vakil for the appellants is that article 109 and not article 105 of schedule II to the Limitation Act of 1877 (schedule I to the Act of 1908) is applicable to the case. In 1871 Act No. IX of 1871 came into force, and in article 105, of the second schedule appended to that Act, provision was made for the recovery by a mortgagor of surplus collections received by the mortgagee after the mortgage had been satisfied, the period of limitation being three years from the date of receipt, i.e., the receipt of the collections. This Act was in force up to the passing of Act No. XV of 1877 which came into operation on the 1st October, 1877. Article 105 of the second schedule to that Act prescribed a period of three years' limitation for a suit for surplus collections to date from the time when the mortgagor re-enters on the mortgaged property. The same provision in regard to limitation is contained in article 105 of the recent Act, Act No. IX of 1903. In section 2 of Act No. XV of 1877, it is prescribed that nothing therein contained shall be deemed to revive any right to sue barred under Act No. IX of 1871, or under any enactment thereby repealed. The same provision in regard to limitation is contained in article 105 of the recent Act, Act No. IX of 1903. In section 2 of Act No. XV of 1877, it is prescribed that nothing therein contained shall be deemed to revive any right to sue barred under Act No. IX of 1871, or under any enactment thereby repealed. It has been contended before us, as we have said, that the article applicable to this case is article 109 and not article 105 of the Acts of 1877 and 1908, and reliance has been placed upon a ruling of a Bench of this Court in the case of Bhup Singh and Others Vs. Ram Din In this case the plaintiffs, who were usufructuary mortgagors brought a suit for redemption on the ground that the mortgage debt had been satisfied from the profits of the mortgaged property. In that suit the plaintiffs did not claim any surplus profits, nor did they obtain, as in this case, leave of the court to bring a subsequent' suit for surplus profits. It was held by Mr. Justice Aikman and Mr. Justice Karamat Husain that the suit was barred by the provisions of section 43 of the CPC of 1882. Mr. Justice Aikman in his judgment remarked:--"In my opinion this article must not be construed so as to conflict with the provision of section 43 of the CPC and must be deemed to refer to cases in which the mortgagor has got possession of the mortgaged property otherwise than by means of a suit for redemption." In that case the suit did conflict with the provisions of section 43 of the Code of Civil Procedure, and therefore is unlike the suit which is now under consideration, in which there is no' conflict between section 43 of the CPC of 1882 and article 105 of the Limitation Act. But the learned Judges who decided that case go on to remark that article 105 must be deemed to refer to cases in which the mortgagor has got possession of the mortgaged property otherwise than by means of a suit for redemption. In the circumstances of that case this is merely an obiter dictum and we are not bound by it. We may say, however, that we are unable to accept the dictum so expressed. In the circumstances of that case this is merely an obiter dictum and we are not bound by it. We may say, however, that we are unable to accept the dictum so expressed. We are of opinion that if permission to bring a subsequent suit for surplus profits has been given in accordance with section 43 of the former CPC or order II, rule 2, of the present Code, there being no conflict between the provisions of the articles and the provision of the section and order respectively, there is no reason why article 105 of the Limitation Act should not apply as it is expressed in terms to do. The language of the article precisely meet the case before us. In a suit by a mortgagor after the mortgage has been satisfied as in this case, a suit to recover surplus collections received by the mortgagee may be brought within three years from the time when the mortgagor re-enters on the mortgaged property. Article 109 does not apply to a cage of the kind. There is no restriction as to the way in which the mortgagor may obtain possession, and we see no grounds for holding, as did the learned Judges in the case above referred to, that it only applies to cases in which the mortgagor has obtained possession otherwise than by means of a redemption suit. We are of opinion that the suit is maintainable and that the only article which can apply is article 105. Article 109 is applicable to a different state of things. It contemplates a suit for the profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant, and not a suit by a mortgagor for surplus collections. 4. Another point has been raised, by the learned vakil for the appellants, and that is, that under Act No. IX of 1871, limitation ran from the date of the receipt of the surplus collections and that this provision was in no way affected by the provisions of Act XV of 1877, which altered the period from which limitation began to run. As we have said section 2 of the Act of 1877 prescribes that nothing therein contained should revive any right which had been barred under the earlier Statutes. As we have said section 2 of the Act of 1877 prescribes that nothing therein contained should revive any right which had been barred under the earlier Statutes. We think that this contention is well founded, and that the plaintiffs are not entitled to recover surplus profits which were received prior to the 1st of October, 1874. To this extent the argument addressed to us must prevail. The learned advocate and vakil for the respective parties have calculated what sum should be allowed in respect of the surplus collections for the period prior to the 1st of October, 1874, and they are agreed that Rs. 500 represents the amount of the surplus collections for that period. 5. These are the only matters which have been discussed, before us. We allow the appeal in so far that we reduce the amount decreed to the plaintiffs by a sum of Rs. 500. In other respects the decree of the court below will stand. We direct that the parties shall pay and receive costs in proportion to failure and success in both courts.