JUDGMENT Bennett and Madeley, JJ. - This is an appeal u/s 45 of the U. P. Encumbered Estates Act by the applicants in proceedings under that Act. The respondents made certain claims arising out of a mortgage deed executed on the 11th December, 1916, by Sital Singh father of one of the applicants, Thakur Hardeo Bakhsh Singh. The other two applicants are the son and grandson respectively of Thakur Hardeo Bakhsh Singh. The mortgage deed was executed in favour of Mata Prasad, father of the respondents. Their claim against the applicants was decreed for Rs. 3,531/12 with proportionate costs and future interest at 4 per cent per annum from the date of re-delivery of the mortgaged property by the mortgagees to the appellants. 2. The only question for consideration in this appeal arises out of issues 3A- 3B and 5 which run as follows: 3A. Are the claimants not entitled to claim interest for the period they were out of possession? 3B. Is the same claim barred by time? 5. Is the claim for interest barred by Section 11C. P. C.? To appreciate these issues close examination of the mortgage deed. Ex. 1., is necessary. Under it Sital Singh borrowed from Mata Prasad a sum of Rs. 4,000 with interest at -/14/- per cent per mensem. Sital Singh agreed to pay the entire amount with interest within one year. The translation of the deed proceeds as follows : In case of default the said Mahajan (i.e. Mata Prasad) shall have power to take into his possession the mortgaged share by himself or through Court and to realise the costs of obtaining possession and the interest of the period of non-possession from my other property. The deed then shows what the position will be after possession has been taken by Mata Prasad under this provision. It gives him power to increase or decrease rents and to eject tenants. Should there be any decrease in the income, Sital Singh agreed to make it good with interest at the same rate at the time of redemption. He also agreed to get mutation of names effected in favour of the mortgagee on his taking possession. The mortgagor retained the power of redemption on paying the entire mortgage money together "with the asamiwar arrears etc." in the fallow season of the month of Jeth. He also agreed to get mutation of names effected in favour of the mortgagee on his taking possession. The mortgagor retained the power of redemption on paying the entire mortgage money together "with the asamiwar arrears etc." in the fallow season of the month of Jeth. The deed concluded with the following provision : If after the, expiry of the stipulated period the said mortgagee wants to take his money he shall give a notice for two months period and shall get his money, principal with interest and with other dues payable to him, realised from the mortgaged property and also from my other property moveable and immoveable. Sital Singh did not pay up the principal and interest at the end of one year and in 1923 the mortgagee sued for possession and a sum of Rs. 2, 940 as interest for the seven years period for which the mortgage had run. In the alternative he prayed for a sum of Rs. 6,940. that is the principal of Rs. 4,000 plus interest amounting to Rs. 2,940 with future interest at 11 annas per cent per month, by sale of the mortgaged property. The record of that case is not before us nor is the written statement. We have only the plaint Ex. Al, and the judgment of the Subordinate Judge of Barabanki dated the 12th March, 1924. There were three issues in the case : 1. Is the deed of mortgage sued upon genuine ? 2. Was the deed executed for payment of antecedent debt as alleged ? 3. To what relief is the plaintiff entitled ? The Subordinate Judge found that the deed was genuine and executed for an antecedent debt. On the third issue he found that the plaintiff was entitled to mortgagee possession and he decreed the suit for possession accordingly; saying nothing whatever about the claim for interest. It is clear, however, from the issues that this claim was not opposed, and the only apparent reason why it was not decreed is that it was considered premature. As the record is not before us we arc not able to say how this finding was arrived at, whether by agreement of Counsel or otherwise. It is clear, however, from the issues that this claim was not opposed, and the only apparent reason why it was not decreed is that it was considered premature. As the record is not before us we arc not able to say how this finding was arrived at, whether by agreement of Counsel or otherwise. In their claim under the Encumbered Estates Act the respondents included a claim for interest in respect of the period for which they were out of possession, and this claim was met by the appellants with the contention that the claim was barred by limitation and that the interest not having been allowed in the suit of 1923 the claim was also barred by Section 11 of the Code of Civil Procedure. Hence the last issue which was added after this plea had been taken by Counsel during the proceedings. The Court below decided the issues 3A, 3B and 5 as follows : Issue 3 (A). Reading the mortgage deed (Ex. 1) as a whose I find that the interest due till the mortgagees took possession of the mortgaged property was a charge upon the mortgaged property and was recoverable by the mortgagees along with the principal amount. The last clause of the deed clearly lays down that the principal and interest could be recovered (by sale of) out of the mortgaged property and other moveable and immoveable property. I find that the claimants are entitled to recover the interest due till they took over possesion of the mortgaged property (Exs. 2. and 3. The issue is answered for the claimants. Issue 3 B. The aforesaid interest was a charge on the property mortgaged which is a 7 annas share of the village Parbatpur, (Pergana Mohammad Pur and no question of limitation arises. In any case the claim for the interest in question is not barred by time. The issue is answered in the negative. Issue 5. The previous suit was a suit for the recovery of mortgagee possession (para 7 (A) of the plaint which is Ex. Al). In para 7 (B)of the Same plaint the mortgagees also prayed, for a decree for the unpaid interest. This prayer was absolutely irrelevant in that suit. The learned Subordinate Judge; who tried the suit, did not even frame an issue with regard to the recovery of unpaid interest claimed in that suit. Al). In para 7 (B)of the Same plaint the mortgagees also prayed, for a decree for the unpaid interest. This prayer was absolutely irrelevant in that suit. The learned Subordinate Judge; who tried the suit, did not even frame an issue with regard to the recovery of unpaid interest claimed in that suit. There was no rending of the Court and the claim not for the recovery of the same interest, which was unnecessarily claimed in the precious suit, was not barred by the principle of res judicata or Section 11 C. P. C. The question in respect of the same interest was not substantially at issue between the parties to the previous suit. The issue is answered against the applicants- debtors and in the negative. 3. Arguments before us have related to the construction of the deed and the intention of the parties in regard to a claim for interest for the period of non-possession and to the legal effect of the claim for interest not having been decreed in the previous suit. 4. Learned counsel for the appellants bas argued that the deed implies that interest for the period of non-possession should be claimed when the claim for possession is put forward and that the later, claim was therefore barred by Article 132 of the Limitation Act. This provides that a suit to enforce payment of money charged upon immoveable property shall be instituted within twelve years from the date when the money sued for becomes due. Assuming that this provision is applicable interest for one year became due (on the appellant's construction of the deed) on the 11th December, 1917, and the mortgagee had up to the 11th December, 1929, to sue for it. He would have up to a later date for any interest that accrued in subsequent years if he did not choose to sue for possession at once, but at the very latest time would commence to run from the 27th March 1924 when the mortgagee obtained possession. 5. We have carefully considered the terms of the deed. Considered by itself the earlier provision for realisation of interest for the period of non-possession in just a position with the provision for assumption of possess on certainly suggests that both claims may be made at the same time. 5. We have carefully considered the terms of the deed. Considered by itself the earlier provision for realisation of interest for the period of non-possession in just a position with the provision for assumption of possess on certainly suggests that both claims may be made at the same time. But there is also the provision at the end of the document that the mortgagee may sue for interest when he sues for the principal, this embodying the normal rule of law. It is, however, possible that by the interest here referred to was meant such interest as might have accrued during the period the mortgagee was in possession, the accrual of such interest being contemplated by the provision in the body of the deed which we have mentioned. But we feel some doubt whether it was intended to restrict the term in this way. 6. On the whole we think it most likely that while the parties intended that interest might be claimed with the claim for possession, they also contemplated the possibility of it being claimed, as it usually is, when the mortgagee sued for the principal. Learned Counsel for the appellants, after putting forward the view adopted by the Special Judge that the earlier claim was premature (we understand that this is what he meant when he said that it was 'irrelevant'), based his case with respect to the other construction on the contention that the mortgagee had an option. He could sue for interest when he sued for possession or he could wait until he sued on the mortgage for the principal. 7. Learned counsel argued that the law on this subject was not settled until the Privy Council case of Lasa Din v. Gulab Kunwar (1932) 59 I A 376. of the year 1932 and that this case supports the view that the mortgagee had an option. We were referred to a number of earlier cases in which a different view was taken and we think it desirable to show what was decided in each case and how judicial opinion has developed. We take the cases In chronological order. In Gaya Din V. Jhumman Lal (1915) 37 All. We were referred to a number of earlier cases in which a different view was taken and we think it desirable to show what was decided in each case and how judicial opinion has developed. We take the cases In chronological order. In Gaya Din V. Jhumman Lal (1915) 37 All. 400 the mortgage was executed in 1890 for a period of ten years and the mortgagee was empowered to realize by suit his principal and interest due thereon as soon as any default occurred in payment of interest, but it was also provided that if the mortgagee..of realization'. in order to get interest does not bring, a suit in default of any instalment and we are unable to pay the money, the interest shall continue up-to the stipulated period of ten years and after it up to the date of realization. No payment was made of either principal or interest and the mortgagees ultimately sued on the mortgage in 1912. The appeal was heard by a Full Bench, Richards C. J. and Tudball J., held that the suit was barred under Article 132, the mortgage money having become due when the first default was made. Banerji J. on the contrary held that having regard to the second provision the suit was not barred by limitation and that where a creditor is authorized to wait for the full period stipulated for payment the money does not become due until that period expires. The next case Muhammad Hafiz V. Mirza Muhammad Zakariya A I R 1922 PC 23. is a Privy Council case. The conditions in the mortgage deed were that if the interest was not paid for six months the creditor might realize by suit either the unpaid interest or both principal and interest. He sued first of all only for interest and got a decree. Subsequently he sued for the principal and further interest accrued. Their Lordships held that under Order 2, rule 2 of the Civil Procedure Code, having exercised his option of suing for interest alone, he must be deemed to have relinquished his claim for further relief and the second suit was not maintainable. Subsequently he sued for the principal and further interest accrued. Their Lordships held that under Order 2, rule 2 of the Civil Procedure Code, having exercised his option of suing for interest alone, he must be deemed to have relinquished his claim for further relief and the second suit was not maintainable. The facts in that case were different from those in the case under consideration because in the present case the creditor sued both for possession and interest in the earlier suit; he exercised his option (if he had one) in that suit and there was no question of his relinquishing a claim for the principal. The case cited has no bearing on the issues of limitation or res judicata. The next case is an Allahabad case of the year 1929, Shib Dayal v. Meharban (1922) 45 All. 27. In that case the mortgage deed was executed in 1905 for the period of 12 years and provided that the creditor might sue in default of payment of interest at any time within the period or might wait in case of non- payment till the termination of the period and sue then for the principal and compound interest, the interest accruing and not paid being added to the principal every year. The suit was brought for sale in 1919. A Full Bench held that limitation began to run against the mortgagee from the date of the first default in payment of interest and the suit for sale was consequently time-barred. It made no difference whether the right to sue for repayment within the stipulated period was optional or compulsory. Pherai v. Pudai Ram (1924) 27 OC 318 was a case of the Oudh Judicial Commissioner's Court in 1924. There the instrument was a bond and the question was whether the suit was barred by Article 80. The bond was payable within six months. It provided for the payment of interest month by month and in the event of failure to pay in any month compound interest was to accrue on the unpaid interest and the creditor was given the right to sue at once without waiting for the stipulated period of six months. The bond was payable within six months. It provided for the payment of interest month by month and in the event of failure to pay in any month compound interest was to accrue on the unpaid interest and the creditor was given the right to sue at once without waiting for the stipulated period of six months. It was held that limitation began to run from the date of the first default, and further that it was not open to the parties to contract themselves out of the law of limitation by inserting in their agreement two alternative starting points of limitation. Punchum v. Ansar Husain (1926) 53 IA 187, is another Privy Council case but the decision in it is not helpful. The Allahabad cases of Gaya Din v. Jhumman Lal and Shib Dayal v. Meharban were discussed and it was said that in view of the sharp conflict of opinion in different High Courts of India it is manifestly desirable that this Board should finally pronounce......upon the question whether the principle of the two Allahabad decisions above referred to is correct. but they found that the case before them could be decided on Us own special circumstances, and they did not therefore pronounce on the general question. The Special circumstances were that the mortgagee having stated in his amended plaint that this cause of action arose in 1894 was precluded from contending afterwards that it arose in 1905. For this reason Article 132 was held to bar the suit. The appeal was from a decree and judgment of the Allahabad High Court which followed the earlier decisions. In the case of Gaura v. Ram Charan 1927 CWN 207, a Bench of this Court held in a suit upon a bond, where the entire principal amount was divided into installments payable annually with interest within a period of 18 years, the creditor could not wait until the end of the period to sue. The Bench repelled the contention that Article 75 applied and that the creditor had therefore an option to waive his right to sue as each default was made, and held that Article 74 applied. The Bench repelled the contention that Article 75 applied and that the creditor had therefore an option to waive his right to sue as each default was made, and held that Article 74 applied. They approved the decision in Pherai v. Pudai Ram and observed with reference to Pancham v. Ansar Husain: Their Lordships of the Judicial Committee seem to have thrown some doubt on the point of view which was taken in the Oudh decision mentioned above, but they distinctly say in the judgment that they do not decide the point. We therefore think that the decision in the Oudh case should be followed as long as it is not expressly overruled by their Lordships of the Judicial Committee. We return now to Lasa Din v. Gulab Kunwar . The case came before the Judicial committee on appeal from this Court. The first part of the headnote reads : Under the Limitation Act, 1908, Schedule I Art. 132, a suit to enforce a mortgage for a stipulated period can be instituted within twelve years of the expiry of the period, although a default by the mortgagor has occurred during the period and by the terms of the mortgage the mortgagee there- upon had an immediate right to enforce the mort- gage. Referring to what was said in Pancham v. Ansar Husain their Lordships observed (at page 304): There can be no doubt that, as pointed out by Lord Blanesburgh, a proviso of the nature is inserted in a mortgage deed 'exclusively for the benefit of the mortgagees, and that it purports to give them an option either to enforce their security at once, or if the security is ample, to stand by their investment for the full term of the mortgage. If on the default of the mortgagor in other words by the breach of his contract the mortgage money becomes immediately 'due', it is clear that the intention of the parties is defeated, and that what was agreed to by them as an option in the mortgagees is in effect, converted into an option in the mortgagor. If on the default of the mortgagor in other words by the breach of his contract the mortgage money becomes immediately 'due', it is clear that the intention of the parties is defeated, and that what was agreed to by them as an option in the mortgagees is in effect, converted into an option in the mortgagor. For if the latter, after the deed has been duly executed and register, finds that he can make a better bargain elsewhere, he has only to break his contract by refusing to pay the interest, and, 'eo instanti' as Lord Blanesburgh says, he is entitled to redeem, If the principal money is 'due' and the stipulated term has gone out of the contract, it follows, in their Lordships' opinion, that the mortgagor can claim to repay it, as was recognized by Wazir Hasan J. in his judgment in the Chief Court. Their Lordships think that this is an impossible result. They are not prepared to hold that the mortgagor could in this way take advantage of his own default; they do not think that upon such default he would have the right to redeem, and in their opinion the mortgage money does not become 'due' within the meaning of Article 132 of the Limitation Act until both the mortgagor's right to redeem and the mortgagor's right to enforce his security have accrued. This would, of course, also be the position if the mortgagee exercised the option reserved to him. 8. Thus there can be no doubt, upon our construction of the deed that the mortgagor intended to give the mortgagee an option as regards the time of suing for interest, that, as the law has now been expounded by the Judicial Committee, legal effect can and must be given to this intention. The mortgage, originally simple, became usufructuary when the mortgagee obtained posession and under the deed it was open to the mortgagor to redeem or to the mortgagee to sue for his money at any time. 9. But it still remains to consider the effect of the claim for interest in the first suit and of the failure of the mortgagee to obtain a decree for it. There can be no doubt about the claim. He paid court-fee upon it and there being no dispute about its validity it is certainly improbable in the extreme that he intended to waive it altogether. There can be no doubt about the claim. He paid court-fee upon it and there being no dispute about its validity it is certainly improbable in the extreme that he intended to waive it altogether. Learned Counsel for the respondents argues that the natural inference is that the matter was raised in the proceedings before the Court and that there was an agreement that the claim should not be pressed in that suit, possibly because it was thought that the claim, was premature, the Civil Judge taking the same view as was taken by the Special Judge in the present case and pressing upon the parties. It is unfortunate that he should have sale nothing about it in his judgment, but the mortgagee cannot be blamed for that. 10. Learned Counsel for the appellants relied on Explanation V to Section 11 which reads Any relief claimed in the plaint which is not expressly granted by the decree, shall, for the purposes of this section be deemed to have been refused. 11. Shibu Bera v. Chandra Mohan Jana (1906) 33 Cal. 849 was cited for the appellants. In that case the mortgagee elected to take a simple money decree, waiving the right to have the mortgaged property sold in the event of the money not being paid. He was unable to obtain satisfaction of his decree and then instituted another suit for sale of the property. It was held that the decree operated as res judicata. The facts in that case were thus quite different from those in the present case, where there is nothing to show that the mortgagee waived his claim to interest, and on the contrary the facts suggest that he merely deferred it. 12. Learned Counsel also refened to Explanation IV which reads Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 13. We do not see how this Explanation helps him. Admittedly the only possible defence to the claim was that it was pre- mature. 13. We do not see how this Explanation helps him. Admittedly the only possible defence to the claim was that it was pre- mature. Had this defence been put forward, as it may have been in the proceedings, and if the omission of interest from the decree is explained in this way, the implied finding that the claim for interest was premature will operate as res judicata against the appellants. We agree that having regard to Explanation V the relief claimed must be deemed to have been refused, but if it was refused on the ground that the claim was premature, the refusal will not help the appellants. 14. We think on the facts before us that it is not possible to say that the matter was directly and substantially in issue in the former suit and that the issue was heard and finally decided. We also consider that it was incumbent upon the appellants, when they raised the plea of res judicata, to place before the Court all materials required to enable the Court to allow the plea. We cannot hold that-the appellants have done everything that they might have done to satisfy the Court that the plea is warranted. We are not therefore prepared to decide this issue in their favour. 15. The appeal is accordingly dismissed with costs.