JUDGMENT : 1. This is a first appeal from an order of remand passed under Order XLI, rule 23 of the CPC. The suit was one by mortgagors against mortgagees, and for the determination of the question in issue before us it is necessary to consider carefully both the terms of the mortgage-deed and the frame of the suit. The mortgage was one of four shops, and in terms it purported to be a usufructuary mortgage in the full sense of the word, with delivery of possession. There were, however, some curious provisions, not wholly consistent with the ordinary status of a mortgagee in possession. Not only were the mortgagors liable for repairs, but there was a special stipulation with regard to the letting of the shops. The recital in the deed was that the four shops were let for a sum of Rs. 30-8 per mensem, and that the mortgagees were entitled to receive this as interest on their money. It is provided further that, in the event of the shops letting for less than this amount, the mortgagors are to make good the difference. Then comes a further provision that the right to grant abatement of rent, or to enhance the rent, is reserved to the mortgagors, and that if the mortgagors can succeed in letting the shops so as to bring in a larger sum than Rs. 30-8 per mensem, the mortgagors are to receive the amount of such enhancement month by month. 2. The suit as brought was against two sets of defendants, the first set being the mortgagees and the second set being tenants occupying two of the shops. With regard to the other two shops not occupied by the defendants second party, nothing is said in the plaint. As regards these two particular shops, the plaintiffs allege that they are prepared to put in tenants who will pay a rent of Rs. 4-12 per mensem in excess of that at present being paid by the defendants second party. It is on that ground that the plaintiffs had served notices calling on the defendants second party to vacate the shops and on the defendants first party to compel them to do so; but both sets of defendants had refused to act on these notices. It is on that ground that the plaintiffs had served notices calling on the defendants second party to vacate the shops and on the defendants first party to compel them to do so; but both sets of defendants had refused to act on these notices. The relief sought is (1) an injunction to direct the defendants first party to enhance the rent payable by defendants second party to the extent of Rs. 4-12 per mensem; and (2) a declaration that, in the event of their failing to do this, the plaintiffs shall be entitled from the month of September 1911 to have the sum of Rs. 4-12 credited month by month in reduction of the mort-gage-debt. 3. The Court of first instance framed five issues, but decided only the first and the fifth. The learned Subordinate Judge was of opinion that the suit as brought was premature and not maintainable and he dismissed it accordingly. The District Judge on appeal has discussed the question solely from the point of view whether the suit could be said to be “premature,” in the sense in which that expression had been used by the Court of first instance. The learned Subordinate Judge had expressed an opinion that all matters of account as between a mortgagor and his mortgagee could only be decided upon a suit for redemption of the mortgage, and he has given this as one of his reasons for holding that the suit was not maintainable. The learned District Judge has dissented from this view of the law and has accordingly set aside the decree of the first Court and remanded the case under Order XLI, Rule 23 of the CPC, recording his opinion that the suit as brought is maintainable and not premature, though whether it can succeed or not is a point to be determined when the evidence has been taken and all issues in the case decided. 4. After hearing both parties, the conclusion we have come to is substantially this. The suit is not “premature” in the sense in which that expression was used by the Courts below; but we are, nevertheless, of opinion that the first Court was substantially right and that the suit is not maintainable as brought. 4. After hearing both parties, the conclusion we have come to is substantially this. The suit is not “premature” in the sense in which that expression was used by the Courts below; but we are, nevertheless, of opinion that the first Court was substantially right and that the suit is not maintainable as brought. In other words, we are of opinion that the facts stated in the plaint disclose a cause of action upon which the plaintiffs might have sought immediate relief, but their suit has been entirely misconceived and the reliefs sought by them could not possibly be granted. We have to deal with a mortgagee-deed containing peculiar and somewhat anomalous provisions. It is necessary for us to put some reasonable interpretation on the provision of that deed which reserves to the mortgagors the right of enhancing the rent. We think this provision was inserted in order to protect the interests of the mortgagors in the event of any considerable rise in the letting value of the property. We do not think that it was intended that the tenants in possession should be tenants of the mortgagors, or that the mortgagors should be entitled to eject them at pleasure. In fact the plaintiffs did not put forward any such claim in the present suit. Had they desired the Court to accept any such view as this, they would have asked for the ejectment of the defendants second party, as tenants who are refusing to vacate the premises after having been duly served with notice by the proprietors. What we do think the provision in question means is that the mortgagors are entitled, in the event of any definite appreciation in the letting value of the mortgaged property, to call upon the mortgagees to secure them the benefit of that appreciation. It is obvious to us, on the terms of the deed as it stands, that if the mortgagees had in fact succeeded in letting this property so as to bring in a monthly rental of Rs. 35-4, instead of Rs. 30-8, and had endeavoured to keep the difference of Rs. It is obvious to us, on the terms of the deed as it stands, that if the mortgagees had in fact succeeded in letting this property so as to bring in a monthly rental of Rs. 35-4, instead of Rs. 30-8, and had endeavoured to keep the difference of Rs. 4-12 monthly in their own pockets, upon a plea that this was a matter which could be decided only upon a suit for redemption, the mortgagors would be entitled to claim that the deed gave them a right to the present benefit and enjoyment in respect of the enhancement of rent. They could have maintained a suit for recovery of arrears of enhanced rents from the hands of the mortgagees, and they could have maintained such a suit even during the pendency of the mortgage. From this it Seems to us a reasonable inference to hold that, if the plaintiffs are in a position to prove that over a specified period of time the mortgagees have persistently and without reasonable cause been letting the shops for less than their fair letting value, the latter will be liable under the terms of the deed for not securing to the mortgagors the benefit of the enhanced rent. If this view is correct, it is obvious that neither the claim for an injunction nor the claim for a declaration can be maintained. The declaration in any case is an impossible one, because it is difficult to conceive of evidence which would justify a Court in holding that, from any given period upto such indefinite period as may be marked by redemption of the mortgage, the letting value of the shops is certain to be a specified sum in excess of that at present assessed. 5. The only other question which we have to consider is whether, if the order of remand be maintained and the suit sent back to the Court of first instance, the plaintiffs might not obtain some relief after asking for an amendment of the plaint. We have duly considered this point, and are of opinion that an amendment, such as would satisfy the view which we have taken as to the respective rights and liabilities of the parties, would so change the entire nature of the suit that it would not be proper for any such amendment to be permitted at this stage of the suit. On the fact stated by them the plaintiffs have a continuing cause of action, in this sense that they are entitled to claim damages for any period over which they can prove that these mortgagees are persistently and without reasonable cause under-letting the mortgaged property. The only penalty which they may have to pay for the failure of this suit would be their inability to recover damages for a comparatively short period between the month of September 1911 and the date of the institution of the present suit. We are, therefore, of opinion that the learned Subordinate Judge was right in holding that this suit was not maintainable, inasmuch as it claimed reliefs not warranted by the facts upon which the cause of action was alleged to be based. 6. On this ground we accept this appeal, set aside the order of the lower Appellate Court and restore the decree of the Court of first instance. The defendants will get their costs throughout.