JUDGMENT : Narasimham, J. - This second appeal is by the Defendants-mortgagees against the appellate judgment of the Subordinate Judge of Berhampur reversing the judgment of the Munsif of Berhampur and decreeing the mortgagor's (the Plaintiff's) suit for recovery of possession of the mortgaged property u/s 17 of the Orissa Money-lenders Act and for other consequential reliefs. 2. The mortgage bond (ext. A) is dated 18-7-1931. The principal was noted as Rs. 1,500/-/- interest being payable at the rate of eight annas per month per hundred. The lands described in the schedule attached to the deed were mortgaged by way of security for the loan and it was stipulated that all profits from the said lands shall after paying the Government revenue, be appropriated by the mortgagees in lieu of interest on the loan. Paras 4 and 5 of the deed on the construction of which this litigation rests may be translated as follows: PARA 4.- On the 18th of July, 1936, the mortgagor shall pay the mortgagees the sum of Rs. 1,500/- towards the principal of the mortgage bond and obtain possession back, of the lands together with this bond duly endorsed and also the cist receipts in token of payment of assessments made to the Government. PARA 5.- In the event of the principal money hereby secured not being paid off on the aforesaid date, the mortgagees shall, in accordance with the above terms, be enjoying the lands, until the mortgagor pays of the amount In the document itself, the deed was described as usufructuary mortgage (Bhoga Bandha Patrika) for Rs. 1,500/- and the period of the mortgage (Waida) was noted as five years. 3. The controversy between the parties was as to whether it was a pure usufructuary mortgage to which Section 17 of the Orissa Money-lenders Act would apply or else whether it was an anomalous mortgage to which Section 17 of the Orissa Money-lenders Act admittedly did not apply. The trial Court held it to be an anomalous mortgage inasmuch as there was a personal covenant to pay the mortgage money. The lower appellate Court reversed its finding and held that it was a pure usufructuary mortgage. 4. The trial Court held it to be an anomalous mortgage inasmuch as there was a personal covenant to pay the mortgage money. The lower appellate Court reversed its finding and held that it was a pure usufructuary mortgage. 4. Hence, the main question for decision is whether on a true construction of the said document it could be reasonably held that there was a personal covenant by the mortgagor to pay the mortgage money in addition to the hypothecation of the property by way of security for the loan and delivery of possession of the same to the mortgagees. It was urged that the fixing of a period of five years for the mortgage and the recital in para 4 of the deed by which the mortgagor undertook to pay the mortgage money on the 18th of July, 1936, clearly indicated a personal covenant to pay the money. On behalf of the Respondent, however, Mr. Pal relying on Luchmeswar Singh v. Dookh Mohan ITR 24 Cal 678 and several subsequent decisions based on the same urged that there was no agreement to repay the principal money and that the said recital was merely, a proviso for redemption, fixing the minimum time within which the mortgagor could redeem. The Counsel for both sides cited innumerable decisions where on a construction of a recital in a mortgage deed, similar in terms to that found in the present case, various High Courts have taken divergent views. In the well-known case Kalka Singh v. Paras Ram ILR 2 Cal 434 (P.C.), Their Lordships of the Privy Council pointed out...although an unqualified admission of a debt no doubt implies a promise to pay it, Their Lordships are not prepared to hold that is necessarily so where there is an express promise to pay in a particular manner. It must depend on the construction of the instrument in each case.... It must depend on the construction of the instrument in each case.... The same principle was slightly elaborated by the Privy Council in another decision reported in Narayan Singh v. Adhindra Nath Mukherjee ILR 44.Cal 388 (P.C.) as follows: The sole question which remained, therefore, was whether there was any personal liability on the part of the mortgagor for, payment of that portion of the loan and interest which remained unsatisfied out of the rents of the villages-In considering this question it must be borne in mind (i) that a loan prima facie 'involves such, a personal liability (ii) that such a liability is not displaced by the mere fact that security is given for the repayment of the loan with interest but (iii) that the nature and terms of such security may negative any personal liability on the part of the borrower. 5. Applying the aforesaid principles to the present case it seems clear that though the admission of the loan of Rs. 1,500/- would prima facie involve personal liability to pay on the part of the mortgagor, his statement in para 5 of the deed (which has already been quoted) to the effect that if the loan be not repaid on the date fixed (18th July, 1936) the mortgagees shall continue to possess the lands in accordance with the terms of the mortgage till the mortgagor pays off the amount would displace the prima facie view and negative any idea of personal liability. The mere promise to pay within a certain fixed period would not import such a personal liability chiefly because the remedy provided in case of default in payment within the period as described in para. 5 is of a limited nature, namely, the mortgagees should continue in possession on the same terms as before till repayment. No other remedy such as their right to sue for the money is inserted in the deed. Doubtless, if no remedy had been provided at all it may be urged with some justification that the implication to pay arising out of the unqualified admission of the debt would continue. No other remedy such as their right to sue for the money is inserted in the deed. Doubtless, if no remedy had been provided at all it may be urged with some justification that the implication to pay arising out of the unqualified admission of the debt would continue. But the express stipulation in case of default in payment (para of the deed) would, by the application of the maxim 'expressio uniusest exclusio allerius', exclude any other method of realising the loan and the mortgagees can claim performance only according to the terms of the deed (see, Ghose on Law of Mortgages in India, 5th edition, pp. 82-83). In Shiam Sundar v. Dilganjan Singh 391 C. 540 the remedy provided in the mortgage deed for satisfaction of the debt was held to be the main test to decide whether there is a personal liability. 6. The fixation of a period for repayment of the mortgage debt does not necessarily indicate that this is not a pure usufructuary mortgage. The provisions of Section 62 clause (b) of the Transfer of Property Act show that even in an usufructuary mortgage a term may be prescribed for payment of the mortgage-money. There was some controversy as to whether the mortgage debt was payable 'on' the 18th of July, 1936 or else whether it was payable 'by' that date. The Telegu word used in the document is 'Nitiki' which was rightly translated by the lower appellate Court as meaning 'by' and not 'on'. It is true as pointed out by the lower appellate Court, that the word 'by' in the context would mean 'Oil or before'. In other words the mortgagor agreed to pay the mortgage-debt on or before the stipulated period. It is, therefore, unnecessary in this case to consider whether a personal covenant to pay can be inferred if the undertaking was to pay the loan on a fixed date and not on any date prior to that date. Even such a provision would not necessarily negative the view that the document is a pure usufructuary mortgage because as pointed out in Matura Subba, Rao Vs. Surendra Nath Sahu and Another, even in such a mortgage there may be a condition on the part of the mortgagor not to redeem within a limited period. Even such a provision would not necessarily negative the view that the document is a pure usufructuary mortgage because as pointed out in Matura Subba, Rao Vs. Surendra Nath Sahu and Another, even in such a mortgage there may be a condition on the part of the mortgagor not to redeem within a limited period. Where, however, as in the present ease, though a period is fixed the mortgagor retains the right to redeem the mortgage on or before the date fixed and further says that if no such redemption takes place by that date, the mortgagees would continue to possess the land on the same terms as before, it seems clear that the fixation of the period in the mortgage-deed is of no significance and cannot by itself import a personal liability. 7. In the case laws on the subject are scrutinised in the light of the aforesaid principles they are easily reconcilable. The leading decision is Luchmeswar Singh v. Dookh Mohan ILR 24 Ca1. 678 where it was held that the fixation of a period for payment of the mortgage-money was merely a proviso for redemption and that it did not involve a personal liability to pay. In Babu Kamal Nayan Prasad Sinha and Others Vs. Babu Ram Nayan Prasad Sinha, Raghunandan Prasad and Binda Pathak and Others, it was held that where the recital in the deed was to the effect that if the mortgage-money be not paid on the due date the mortgage will remain in force and in tact till repayment of the money with all conditions set forth therein, there was no personal covenant to pay. Das J. pointed out that "an absolute convenant cannot be coupled with a condition that if the money be not paid within the time fixed, the mortgagee would continue to be in possession and the mortgage bond would remain in force". In M.K.R.M. Muthuraman Chettiar Vs. Subramanian Chettiar and Others, where also the terms- were similar, the same view was adopted. Udai Singh v. Bhunesharnath Singh AIR 1937. Pat. 94, is also on the same line. Again, in Jamuna Singh and Others Vs. Sheonandan Singh and Another the previous Patna decisions on the subject were reviewed and it was held that there was no personal covenant to pay. P.R.M.P.L.R.M. Palaniappa Chettiar Vs. K. Periaswami Konar and Another and Bhutnath Janan and Another Vs. Gopal Prosad Sahu through Sm. Pat. 94, is also on the same line. Again, in Jamuna Singh and Others Vs. Sheonandan Singh and Another the previous Patna decisions on the subject were reviewed and it was held that there was no personal covenant to pay. P.R.M.P.L.R.M. Palaniappa Chettiar Vs. K. Periaswami Konar and Another and Bhutnath Janan and Another Vs. Gopal Prosad Sahu through Sm. Kamini Dei, may also be cited in this connection. In these decisions special emphasis was laid on the recital in the mortgage-deed to the effect that the mortgagee would continue to possess the lands on the same terms as before if the debt was not discharged by the mortgagor on the date fixed. This was held to imply that there was no unconditional and unequivocal promise to repay the debt so as to involve personal liability. 8. The decision cited by Mr. Mohapatra on behalf of the Appellants are clearly distinguishable. He first referred to Chhathi Lal Sah Kalwar Vs. Bindeshwai Prasad Sahu and Others. In that case there was no stipulation in the mortgage-deed about the consequence of non-payment by the date fixed in the deed. This was considered as one of the circumstances in favour of the view that there was an unconditional promise to pay by a fixed date so as to involve personal liability. Similarly, Kangaya Gurukal v. Kalimuthu Annavi ILR 27 Mad 526, Dhattambhat Rambhat v. Krishnabhat ILR 34 Bom 464 and Muhammadhu Mamoona Labbai and Others Vs. C. Ramanatha Pillai and Others, are cases where also there was no such recital in the document about that would happen if there was default in payment of the mortgage-debt on the due date. In Muhammad Naina Thambi Maracayar v. Sidhi Muhammad 1937 MWN 81, the default clause was to the effect that the mortgagor would pay the mortgage amount and redeem the mortgage. This was rightly held to indicate an unconditional liability to pay. 9. Mr. Mohapatra also relied on Pargan Pandey v. Mahatam Mahto 6 C.L.J. 143 There the terms were as follows: I shall repay the principal amount on the full moon day of the end of Wait 1287, Fasli and take back the bond. If I shall not be able to repay the same on the due date of payment, then this document shall remain in tact up to the repayment of the same. If I shall not be able to repay the same on the due date of payment, then this document shall remain in tact up to the repayment of the same. As security for the said amount I have mortgaged and hypothecated the said field. The document further contained a covenant to the effect that if the mortgagees were dispossessed for any reason, then the mortgagor must pay interest on the principal amount at the rate of 15 per cent per annum. Doubtless, in this document there is a clear recital to the effect that in default of payment on the date fixed the document shall remain in tact up to the date of repayment. But the further recital to the effect that if the mortgagees were dispossessed they would be entitled to interest at Hi per cent per annum makes this case distinguishable from the other cases mentioned above. The question ultimately turns on a true construction of the document after giving full effect to ail the terms contained therein. The undertaking to pay interest at 15 per cent per annum if the mortgagees were dispossessed may justify the view that there was an unconditional promise to pay. 10. Mr. Mohapatro also relied on Rahimuddin Choudhuri v. Nayan Chnad (1), which was also cited before the lower appellate Court. The recitals in the mortgage deed in the Assam case are doubtless very similar to the recitals in the present case. But with great respect I am unable to subscribe fully to the view taken by the learned Judges in that case. They seem to have not given due importance to the view that an unconditional promise to pay cannot be coupled with a condition that in case of non-payment the mortgagee would continue to remain in possession as before. 11. On a true construction of the document therefore, I would agree with the learned lower appellate Court that there was no personal covenant to pay and that it is a pure usufructuary mortgage. Hence, Section 17 of the Orissa Money-Lenders Act applies with full force and the lower appellate Court's order was justified. The appeal fails and is dismissed. There will be no order for costs in this Court. But the lower appellate Court's order for costs will stand. Rao, J 12. I entirely agree. Hence, Section 17 of the Orissa Money-Lenders Act applies with full force and the lower appellate Court's order was justified. The appeal fails and is dismissed. There will be no order for costs in this Court. But the lower appellate Court's order for costs will stand. Rao, J 12. I entirely agree. The contest of this case in all the three Courts clearly illustrates the advisably of amending Section 17 of the Orissa Money Lenders Act by deleting the expression 'usufructuary mortgage' and substituting 'possessory mortgage'. The object of the Legislature in enacting the Orissa Money Lenders Act is to relieve the debtors and by Section 17 the object is to relieve the mortgage who parted with possession of the property to the mortgagee who is to enjoy the usufruct of the mortgaged property. Unfortunately, this section, as it now stands, cannot be availed of by mortgagors who have parted with possession, but the terms of the mortgage-bond do not constitute a usufructuary mortgage. For example, in cases where though it is a mortgage with possession, there is a term in the mortgage bond undertaking a personal covenant to pay, it becomes an anomolous mortgage and Section 17 cannot be availed of. It is desirable that in accordance with the object of the Legislature in enacting the Act, all mortgagors who part with possession of the mortgaged property and allow the mortgagee-creditor to be in possession of the same and enjoy the usufruct should have benefit of the principle underlying Section 17. Appeal dismissed. Final Result : Dismissed