Judgment Rai, J. 1. This appeal by the defendants is directed against the judgment and decree passed by the Additional District Judge, Chapra, eon-firming those of the Munsif, 4th court of the same place. 2. The facts relevant for the consideration of the present appeal may shortly be stated as follows. One Prayag Missir had four sons Ram-khelawan Missir, Ramprasad Missir, Naujad Mis-sir and jhontel Missir. Ramkhelawan Missir died leaving his widow Mst. Jugeshwar Kuer. On 18-12-1932 Ramprasad Missir, Naujad Missir and Jhontel Missir executed a zarpeshgi deed in favour of Shwanandan Singh for a sum of Rs. 400 giving in zarpeshgi 4 bighas 7 kathas and 4 dhurs of land. Rs. 385 out of the consideration of Rs. 400 was left with the zarpeshgidar to be paid to Bhawalpur Co-operative Society with which the area given in zarpeshgi had been previously mortgaged. On 22-12-1932 Shivanandan Singh paid Rs. 385 to the Co-operative Society. In 1939 Musammat Jageshwar Kuer obtained a decree for maintenance against Ram Prasad Mis-sir, Naujad Missir and Jhontel Missir which was made a charge on the family properties of the judgment-debtors. On the 29-6-1939 Hari Singh, brother of Shivanandan Singh, who had died since, assigned the garpeshgi bond dated 16-12-1932 and a money decree obtained in Money suit No. 2 of 1939 against Ram Prasad Missir, Naujad Missir and Jhontel Missir in favour of the plaintiffs. Jageshwar Kuer executed her decree for maintenance in Execution, case no. 1189 of 1939 in which 7 bighas 15 kathas and 10 dhurs of land including the lands given in the zarpeshgi bond of 1932 were sold on 10-2-1940 and purchased by the defendant-appellant. The defendant got delivery of possession on 4-4-1940. The plaintiffs executed the assigned money decree in Execution case No. 972 of 1939 in which they themselves purchased, on 10-2-1940, 7 bighas 15 kathas and 10 dhurs of land including the lands given in the zarpeshgi bond of 1932. On 18-4-1940 the plaintiffs, by the delivery of possession in their favour, dispossessed the defendant who thereaiter filed an application under Order 21, Rule 100, Civil P. C., in Miscellaneous case No. 123 of 1940. The Miscellaneous case was allowed on the 25th of September 1940. The present plaintiffs thereafter filed Title suit no. On 18-4-1940 the plaintiffs, by the delivery of possession in their favour, dispossessed the defendant who thereaiter filed an application under Order 21, Rule 100, Civil P. C., in Miscellaneous case No. 123 of 1940. The Miscellaneous case was allowed on the 25th of September 1940. The present plaintiffs thereafter filed Title suit no. 182 of 1940 in accordance with the provisions of Order 21, Rule 103, Civil P. C. In this suit the plaintiffs got an injunction issued against the defendant restraining him from taking possession of the properties in pursuance of the order passed in Miscellaneous case No. 126 of 1940. On 31-3 1942 Title Suit -- 182 of 1940 was dismissed. On 12-4-1942 the defendant got back delivery of possession from the plaintiffs. The plaintiffs filed Title Appeal 101 of 1942 which was ultimately allowed on 17-2-1944. It was held in that appeal that until the present plaintiffs, who were the assignee of the original zarpeshgidars had been redeemed they were entitled to keep possession of the properties given in zarpeshgi. On 17-7-1944 the plaintiffs got redelivery of possession of those properties. On 27-7-1944, the present defendant filed Redemption Suit 150 of 1944, which was decreed on 28-2-1946. The property has thereafter again passed to the possession of the defendant. The present plaintiffs thereafter filed the present suit for mesne profits from the 12th of April 1942 to 17-7-1944 on the allegation that during that period they had been wrongly kept out of possession by the defendant from the zarpeshgi lands. 3. The suit was contested by the defendant, who pleaded, inter-alia, that he had not appropriated any sugar cane crop or parora crop alleged to have been grown by the plaintiffs on plot nos. 501 and 350 respectively. They further pleaded that the plaintiff had illegally taken delivery of possession on 20-4-1940 in respect of an area of 1 bigha 12 khata over and above the lands included, in the zarpsshgi of 1932 for which the plaintiffs themselves were liable to pay mesne profits from 20-4-1940 upto 12-4-1942. It was further pleaded that" the zarpeshgi amount was already satisfied from the price of the trees cut away by the plaintiffs and from the usufruct of 1 bigha 12 kathas aforesaid. It was further pleaded that the amount of mesne profits claimed in the plaint was highly exaggerated and imaginary, 4. It was further pleaded that" the zarpeshgi amount was already satisfied from the price of the trees cut away by the plaintiffs and from the usufruct of 1 bigha 12 kathas aforesaid. It was further pleaded that the amount of mesne profits claimed in the plaint was highly exaggerated and imaginary, 4. During the pendency of the present suit, Redemption suit no. 150 of 1944 was decreed on 28-2-1946. This resulted in framing of an issue as to whether the present suit was barred by res judicata. The trial court came to the conclusion that the present suit was not barred by res judicata and that the plaintiffs were entitled to the mesne profits for the period claimed, the amount of which was to be determined through a pleader commissioner. The defendant thereafter went in appeal but the lower appellate court also affirmed the decree of the trial court and dismissed the appeal. 5. Learned counsel for the appellant contended before me that the present suit was barred by the doctrine of res judicata1. According to him It was incumbent upon the present plaintiffs to have pressed their claim for mesne profits, if any, in the Redemption suit no. 150 of 1944 and having failed to do so their claim in the present suit is barred by res judicata. If the claim for mesne profits bad been pleaded in the redemption suit, a different decree could have been given in that suit. On the basis of the amount of mesne profits claimed in this suit, it would have been held in the redemption suit that the entire principal amount had been overpaid and the plaintiff of that suit could have got some money from the defendant of that suit. In support of his contention the learned counsel relied on the decisions in the cases of -- Ameenamtnal V/s. Meena-kshi, 60 Ind Cas 228 (2) (Mad) (A), -- Mahabir Prasad V/s. Macnaghten, 16 Ind App 107 .(P. C.) (B), -- Narasinga Patro V/s. Bhagavan Sabuto, A. I. R. 1914 Mad 120 (C), and -- Satyabadi V/s. Mfc. Hirabati 34 Cal. 223 (DV, 6. I am afraid I am not inclined to hold that the present suit is barred by res judicata. 7. In this connection, one may profitably look to the provisions of Section 72, Transfer of Property Act and Order 34, Rule 7 of the Code of Civil Procedure. Hirabati 34 Cal. 223 (DV, 6. I am afraid I am not inclined to hold that the present suit is barred by res judicata. 7. In this connection, one may profitably look to the provisions of Section 72, Transfer of Property Act and Order 34, Rule 7 of the Code of Civil Procedure. The relevant portion of Section 72 of the Transfer of Property Act runs thus : "A mortgagee may spend such money as is necessary- * * * (b) for the preservation of the mortgaged property from destruction forfeiture or sale; (c) for supporting the mortgagors title to the property : (d) for making his own title thereto good against the mortgagor; & (e) when the mortgaged property is a renewable lease-hold, for the renewal of the lease; and may, in the absence of a contract to the contrary, add such money to the principal money, at the rate of interest payable on the principal, and where no such rate is fixed, at the rate of nine per cent per annum; (Provided that the expenditure of money by the mortgagee under Clause (b) or Clause (c) shall not be deemed to be necessary unless the mortgagee has been called upon and has failed to take proper and timely steps to preserve the property or to support the title)". The relevant portion of Order 34, Rule 7, Civil P. C., runs thus : "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) directing- (i) that, if the plaintiff pays into court the amount so found or declared due on or before such date as the court may fix within six months from the date on which the court confirms and countersigns the account taken under Clause (a), or from the date on which such amount is declared in court under Clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10 together with subsequent interest on such sums respectively as provided in Rule 118, the defendant shall deliver up to the plaintiff, or to such person as the plaintiff appoints, all documents in his possession or power relating to the mortgaged property, & shall, if so required re- transfer the property to the plaintiff at his cost free from the mortgage and from ail incumbrances created by the defendant or any person claiming under him, or, where the defendant claims by derived title, by those under whom he claims, and shall also, if necessary, put the plaintiff in possession of the property". Thus, the claim for mesne profits from 12-4-42 to 17-7-44 could not have been added to the principal amount on the plain reading of the above quoted provisions of law. 8 The cases reiied upon by the learned counsel of the appellant do not apply to the facts and circumstances of the present case. In the case of -- 60 Ind Cas 220 (2) (Mad) (A), the right which was claimed in the subsequent suit had been agitated and determined in the prior suit. In the case of -- 60 Ind App 107 (P. C.) (B), also the circumstances were different. In the case of -- 60 Ind Cas 220 (2) (Mad) (A), the right which was claimed in the subsequent suit had been agitated and determined in the prior suit. In the case of -- 60 Ind App 107 (P. C.) (B), also the circumstances were different. The facts of that case briefly stated were as follows : 9. In 1876, the shares of appellants in 20 villages were sold for arrears of revenue and were purchased by one Banwari Lal. Suit by appellants for setting aside the revenue sale was dismissed by the trial court but was decreed by the High Court in 1871. In April 1871, appellants got possession of the villages. Banwarilal went in appeal before the Privy Council. In October 1871, appellants share in the twenty villages was mortgaged to the respondent for Rs. 25000. In consideration of further assistance from the respondent appellants agreed to renew the lease of 6 villages which had already been coming in possession of the respondent as lessee since before the revenue sale. Appellants further agreed to grant to the respondent thika patta in respect of the remaining 14 villages for 15 years. In 1874 Banwarilals appeal was dismissed. In July 1874 the appellants renewed the tease of the 6 villages. The appellants further authorised the respondent to collect rent for the year ending in September, 1874, in respect of the remaining 14 villages at an yearly rental of Rs. 3527. In June, 1877, respondent brought a mortgage action for the realisation of the dues on the mortgage bond of October, 1871. The present, appellants as defendants in the mortgage action pleaded that there had been a specific agreement for setting off the rent due in respect of the 20 villages against the mortgage debt. It was further pleaded that they intended to institute a separate suit for realisation of the arrears of rent. The alleged agreement to set off the rent against the mortgage debt was not proved with the result that in January 1S78 the mortgage suit was decreed. In April 1878 the mortgagee decreeholdcr started execution of the mortgage decree but the execution was stayed during the pendency of an appeal to High Court by the mortgagors. In June 1878 the appellants filed two suits for realisation of the rent due, one in respect of the six villages, and the other in respect of the fourteen villages. In April 1878 the mortgagee decreeholdcr started execution of the mortgage decree but the execution was stayed during the pendency of an appeal to High Court by the mortgagors. In June 1878 the appellants filed two suits for realisation of the rent due, one in respect of the six villages, and the other in respect of the fourteen villages. Both the suits were ultimately decreed. After dismissal of the appeal of the mortgagors by the High Court, the execution proceedings were revived and trie decree-holders purchased in September and November, 1879, the mortgage properties for Rs. 17000/-. The judgment-debtors applications impeaching the court sales were ultimately dismissed by the Privy Council. The mortgagors thereafter filed, on 24-11-1883, a suit for setting aside the two auction sales or for treating them as nullities and also for a declaration that the mortgage debt was extinguished by setting against it the arrears of rent due to the mortgagors from the respondent. It was held by the Judicial Committee that the suit of 1883 was barred. The relevant portion of the judgment of their Lordships of the Judicial Committee runs thus : Their Lordships entertain no doubt that the proper occasion for enforcing the equity now pleaded would have been in defence to the mortgage suit of 1877. That was certainly the suit in which any account to which the appellants were entitled as in a question with their mortgagees ought to have been taken. But the appellants not only abstained from putting forward any claim to a general accounting; they declared in their pleadings their intention of bringing a separate action for recovery of the rents, a proceeding which would have been wholly unnecessary if the plea which they urge in this appeal had been put forward and given effect to. The plea is within the meaning of Sec.13, Civil P. C. of 1382, a matter which ought to have been made ground of defence in a former suit between the same parties, and the appellants are therefore barred from insisting on it, ex-ceptione rei judicatae". This case is no authority in support of the argument that the mesne profits claimed in the present suit could have been added to the principal amount in the redemption suit. 10. In the case of -- AIR 1914 Mad. This case is no authority in support of the argument that the mesne profits claimed in the present suit could have been added to the principal amount in the redemption suit. 10. In the case of -- AIR 1914 Mad. 120 (C), the mortgagor was given delivery of possession of the mortgaged lands in execution of a decree passed in a redemption suit. The mortgagee thereafter filed a Small Cause Court suit for realisation of the price of the crops standing on the mortgaged lands at the time of delivery of possession to the mortgagor. It was held in that case that the claim of the mortgagee was barred. The relevant portion of the judgment in that case runs thus : "I think that all the claims as between a mortgagor and a mortgagee should be settled in the suit for redemption itself either before or after decree in that suit, that is, all such claims as relate to the possession of the property, the amounts to be paid, the accounts to be taken, the enjoyment of the property, etc. connected with the reciprocal rights and obligations flowing from the mutual relationship of mortgagor and mortgagee and decree-holder and judgment-debtor". In my opinion, the above observation does not lead to an inference that the present claim for mesne profits could have been included in the amount payable by a mortgagor in a redemption suit. 11. The case of -- 34 Cal. 223 (D), is also distinguishable. In that case the mortgagor made a valid tender of what was due on the mortgage but the mortgagee improperly refused to accept the money tendered. The mortgagor thereafter filed a suit for redemption which was decreed on condition of payment within 6 months of what was due on the date of tender. The amount was deposited and mortgagor was put in possession of the properties. The mortgagor thereafter filed a suit for recovery of damages for wrongful detention of properties from the date of tender upto the date of delivery of possession. It was held in that case that the second suit was barred by res judicata. 12. Learned counsel for the appellant next contended that the claim of the plaintiffs was highly exaggerated. The mortgagor thereafter filed a suit for recovery of damages for wrongful detention of properties from the date of tender upto the date of delivery of possession. It was held in that case that the second suit was barred by res judicata. 12. Learned counsel for the appellant next contended that the claim of the plaintiffs was highly exaggerated. According to him the plaintiffs are in no case entitled to a compensation at a rate higher than what was intended to be paid to the mortgagee in case of his dispossession from the mortgage property. A translation ef the relevant portion of the zarpeshgi bond runs thus : "If the said zerpeshgidar be dispossessed from any portion (of the property) without payment of the entire peshgi money, in that case the said zerpeshgidar or his heirs are and snail be competent to realise the peshgi money with interest from the date of dispossession, to the date of realisation at the rate of 1 1/2 per cent per month from the person and assets and other movable and immovable properties of us, the executants, or our heirs and in security of the said peshgi money the said peshgi property shall remain mortgaged and hypothecated till repayment of the entire pesligi money and the above stipulation shall always remain intact and in force till repayment of the entire peshgi money". 13. Learned counsel ior the plaintiffs-respondents on the other hand contended that the claims and liabilities of the original mortgagors and mortgagees as provided for in the zerpeshgi bond cannot be the basis for determining the amount of mesne profits claimed in the present action. Mr. De in this connection cited the decisions in the case of -- Jarnna Das V/s. Ram Autar Pande, 34 Ail. 63 (P. C.) (E) and -- Nanku Pra-sad V/s. Kamta Prasad, AIR 1923 P C 54 (1) (F) but those cases have no application to the point under consideration at this stage. A purchaser of the mortgaged properties may not be bound by the personal contract entered into by the mortgagor but the terms incorporated in the zerpeshgi bond itself can be a safe guide for determining the compensation payable to the plaintiffs. From the money decree passed in Money Suit no. 2 of 1939 (Ext. D) it appears that the zerpeshgi lands had been leased back to the mortgagors at an annual rental of Rs. From the money decree passed in Money Suit no. 2 of 1939 (Ext. D) it appears that the zerpeshgi lands had been leased back to the mortgagors at an annual rental of Rs. 60.00 and that suit was filed to realise from them the arrears of rent from 1342 to 1346 Fs. In money suit no. 2 of 1939 a decree for Rs. 222/3/- was passed. This decree was assigned by Harisingh decree-holder in favour of the plaintiffs on 29-G-1939. The present plaintiffs executed this decree in Execution Case no. 972 of 1939. During this execution case the plaintiffs dispossessed the defendant from 7 bighas 15 kathas 10 dhurs of land by the delivery of possession in their favour on 18-4-1940. By virtue of the order passed in Miscellaneous Case No. 126 of 1940 the defendant got back possession of the said 7 bighas 15 kathas1 10 dhurs of land. Title Suit No. 182 of 1940 filed by the present plaintiffs under the provisions of Order 21, Rule 103, Civil P. C. related to the entire area of 7 bighas 15 kathas 10 dliurs. The plaintiffs lost from the first court but in appeal the appellate court declared "It is hereby ordered that the plaintiffs have a right to the present possession of Revisional Survey plot nos. 350, 351 and 501, khata no. 22, area 4 bighas 7 kathas 4 dhurs out of the disputed property". It is on this basis that the present plaintiffs got back possession of 4 bighas 7 kathas 4 dhurs by redelivery of possession dated 17-7-1944. After the decree passed in the redemption suit the lands again went to the defendant. Thus, the plaintiffs in their capacity as mortgagees were kept out of possession of the mortgaged lands from 12-4-1942 to 17-7-1944. Due to their dispossession . the mortgagees were deprived of the income from the land which they were entitled to get by way of a return for the investment of Rs. 400/-. Title Suit No. 182 of 1940 and Title Appeal No. 101 of 1940, in which the present plaintiffs sought relief in respect of 7 bighas 15 kathas 10 dhurs of land inclusive of the 4 bighas 7 kathas 4 dhurs included in the present suit, were valued by them at Rs. 600/-. In this suit, however, a fabulous amount of Rs. 600/-. In this suit, however, a fabulous amount of Rs. 33877107- has beert claimed as mesne proiits for about 2 years and 3 months for the very lands which were enjoyed, by the plaintiffs and their predecessors in interest for over ten years and yet the zerpeshgi amount of Rs. 400.00 was claimed as yet unsatisfied in the redemption suit No. 150 of 1944. In my opinion, the plaintiffs are entitled only to compensation and not to mesne proiits in the strict sense of the term for the period they were kept out of possession without redemption. I From Exhibit D it appears that the zerpeshgi lands, were leased back to the mortgagors at an annual rental of Rs. 60/-. The zerpeshgi bond itself contemplates a compensation of Re. 1/3/- per cent per month in case of dispossession of the zarpe-shgidar. In my view, the plaintiffs will be amply compensated by awarding them a compensation, at the rate of Rs. 727- per year for the period, of dispossession besides the price of crops alleged to have been growii by the plaintiffs and appropriated by the defendant by virtue of the delivery of possession dated 12-1-1942. The price which, the alleged crops could have fetched at the date-of delivery of possession and their kind and quantity is to be ascertained hereafter. 14 The result is that the decrees passed by the courts below are modified. The plaintiffs will get only compensation and not mesne profits as directed above. Each party will be entitled, to costs proportionate to its success in all the courts. The costs are to be calculated after the ascertain ment of compensation at the time of the prepa ration of the final decree and will be incorporated in it.