JUDGMENT : Narsimham, J. - The Defendants are the successors-in-interest of the original mortgagee and this appeal has been filed by them against the concurrent decisions of the two lower courts decreeing the Plaintiffs suit for redemption and directing the appointment of a Commissioner to take accounts. The Plaintiff was the mortgagor; but he died during the pendency of the suit and his two daughters were substituted in his place. 2. The first mortgage (Ext. A) dated 7-2-1915 was for a sum of Rs. 800/-. It was a usufructuary mortgage. The stipulated interest was Rs. 1/3/- per cent per month and the mortgaged property consisted of about 53 bharanams of jeroiti and inam lands. It was stipulated that the net income from the said lands should first be appropriated towards payment of in tracts and the balance, if any, should be paid towards satisfaction of the principal. On 7-1-1922 a second usufructuary mortgage of the same property was executed by the same mortgagor in favour of the same mortgagee. The consideration for the second mortgage was stated to be Rs. 800/ - but ill was found by the trial court (and not challenged before us) that the actual consideration was only Rs. 555/-. The only material recital in the second mortgage which need be mentioned there is to the effect that the usufruct of the mortgaged property should be taken to be Rs. 114/- per annum. 3. The Plaintiff's suit was brought on 29-1-1947. On that date the Orissa Money-Lenders Act was in force and as the loan was a 'secured loan' the mortgagee was not entitled to interest ab more than nine per cent simple per annum. The Plaintiff alleged that the total income appropriated by the mortgagee from the usufruct of the mortgaged property from 1915 to 1947 was much more than the principal amounts of the two mortgages plus interest at nine per cent simple per annum and that consequently he was entailed to the balance by virtue of Section 76(h) of the Transfer of Property Act. While the suit was pending the Orissa Legislature made an amendment to the Orissa Money-Lenders Act by the Orissa Money-Lenders (Amendment) Act, 1947 (Orissa Act XVIII of 1947) by which Section 17 of the present Act was amended by the substitution of the following words: "a usufructuary mortgage which in executed either before or after the commencement of this Act" in place of "a usufructuary mortgage which is executed after the commencement of the Act" found in the old section. This amending Act came into force on the 11th June, 1947. The Defendant-mortgagee, therefore, contended that though by virtue of the amendment the two manufacturer mortgages should be deemed have been discharged, yet as no express provision was made in the amended Section 17 for taking of accounts the mortgagor was not entitled to any surplus out of the usufruct. He also relied on the proviso to Section 11(1) of the Orissa Money-Lenders Act and urged than he was not bound to refund any sum paid to him. 4. The material sections, on the proper construction of which this appeal rests, are Section 76(g) and (h) of the Transfer of Property Act and Sections 11(1) and 17 of the Orissa Money-Lenders Act. They are as follows: T.P. Act. Section 76. - When, during he continuance of the mortgage, the mortgagee takes possession of the mortgaged property X X X (g) He must keep clear, full and accurate accounts of all sums received and spent by him as mortgages, and at any time during the continuance of the mortgage, give he mortgagor, at his request and cost, true copies of such accounts and of the vouchers by which they are supported; (b) his receipts from the mortgaged property, or where such property is personally occupied by him, a fair occupation rent in respect thereof, shall, after deducting the expenses properly incurred for the management of the property and the collection of rents and profits and other expenses mentioned in Clauses (c) and (d), and interest thereon, be debited against him in reduction of the amount, if any from time to time due to him on account of interest and, so far as such receipts exceed any interest due, in reduction or discharge of the mortgage money; the surplus, if any, shall be paid to the mortgagor; X X O.M.L. Act. Section 11(1). Section 11(1). In any suit whether brought by a money-lender or by any other person in respect of a loan advanced before the commencement of this Act, the Court shall exercise all or any of the following powers as may be applicable to it, namely: (i) reopen the transaction, take an account between the parties, and relieve the debtor of all liability in respect of any interest, in excess of nine per centum simple per annum in the cases of a secured loan other than a loan of grand and twelve per centum simple per annum in the case of an unsecured loan other than a loan of grain and twenty five per centum simple per annum in the case of a loan of grain; (ii) notwithstanding any agreement purporting to close previous dealings and to create a new obligation, reopen any account already taken between them and relievable debtor of all liability in respect of any interest, in excess of nine per centum simple per annum in the case of a secured loan other than a loan of grain and twelve per centum simple per annum in the case of an unsecured loan other than a loan of grain and twenty five per centum simple per annum in the case of a loan of grain; (iii) appropriate excess interest, referred to in Clauses (i) and (ii) realised through Court or otherwise, towards the satisfaction of the loan; (iv) set aside either wholly or in part or revise or alter any security given or agreement made in respect of any loan, and, if the money-lender has parted with the security, order him to indemnify the debtor in such winner and to such extent as it may deem just: Provided that nothing contained in this Sub-section shall be deemed to require the creditor to refund any sum which has been paid to him. Section 17(1). Section 17(1). Notwithstanding anything to the contrary contained in any other law or anything having the force of law or in any contract, a usufructuary mortgage, which is executed either before or after the commencement of this Act, shall, unless discharged previously, be deemed to stand discharged after the expiration of fifteen rears from the date of the mortgage and the mortgagee shall deliver up to the mortgagor all documents in his possession or power relating to the mortgaged property and shall, if so required, retransfer the property to the mortgagor at his cost free from the mortgage and from all encumbrances created by him or those claiming under him and shall also put the mortgagor in possession of the property; 2. When the mortgagor is a member of a backward tribe as described in Part VI of the Thirteenth Schedule to the Government of India (Provincial Legislative Assemblies) Order, 1936 the Special Assistant Agent, the Sub-Divisional Magistrate or any other officer specially empowered in this behalf by the District Magistrate, the Deputy Commissioner or the Agent to the Provincial Government was the case may be, may, either on application by any one interested or on his own motion, if he is satisfied on a summary enquiry that the mortgage shall be deemed to stand discharged under Sub-section (1), decree ejectment against any person in possession of the property claiming under the mortgage and may restore it to the mortgagor or his heirs: Provided that if the Special Assistant Agent the Sub-Divisional Magistrate or any other officer so empowered, is satisfied that the mortgagor on his heirs are not traceable he may settle such property with another member of the said backward tribe on such terms as he may think fit. 5. The general right of a usufructuary mortgagor under Clauses (g) and (b) of Section 76 of the T.P. Act is quite clear. During the continue once of the mortgage the usufructuary mortgagee should keep full and accurate accounts of all sums received out of the mortgaged property and after deducting the expenses properly incurred for the management of the property and debiting the balance towards the reduction of the interest and principal he should pay the surplus, if any, to the mortgagor. During the continue once of the mortgage the usufructuary mortgagee should keep full and accurate accounts of all sums received out of the mortgaged property and after deducting the expenses properly incurred for the management of the property and debiting the balance towards the reduction of the interest and principal he should pay the surplus, if any, to the mortgagor. The mortgagor is thus clearly entitled to the surplus and in a suit for redemption he could ask for the taking of accounts to ascertain the surplus in any. It was conceded by Mr. Mohapatra before us that Section 77 of the T.P. Act would not apply to the present case and that consequently the mortgagor's right under Clause (h) of Section 76 of the T.P. Act was not affected by Section 77. 6. The Orissa Money-Landers Act, however has complicated the position to some extent. A loan secured by usufructuary mortgage is a 'secured loan' as defined in Section 2(0) of the O.M.L. Act and consequently the provisions of that Act would apply to usufructuary mortgages also. That Act came into force on the 21st June, 1939, but some of the sections were expressly given limited retrospective effect so as to affect transactions, decrees etc. which took place prior to the commencement of that Act. Thus Section 10(1) prohibited any court from passing a decree for interest exceeding the loan originally advanced whether the loan was advanced before or after the commencement of the Act. In the present case, if the other sections of O.M.L. Act do not apply the total interest which the mortgagee would be entitled to get would be only Rs. 1,355/- and the total sum which would be decreed in his favour would be Rs. 1,355/- (interest) = Rs. 2,710/-. The mortgage had subsisted for nearly thirty two years and it appears that the Defendant advocate conceded before the trial court that the annual not profits realised from the mortgaged property would be at least Rs. 100/-. Hence, the total sum realised by the mortgagee out of the property till the date of the institution of the suit would be not less than Rs. 3,200/- and the mortgagor may reasonably claim the surplus after deducting Rs. 2,710/- by way of principal and interest. Mr. 100/-. Hence, the total sum realised by the mortgagee out of the property till the date of the institution of the suit would be not less than Rs. 3,200/- and the mortgagor may reasonably claim the surplus after deducting Rs. 2,710/- by way of principal and interest. Mr. Mohapatra, however, on behalf of the Appellant contended that by virtue of the proviso to Sub-section (1) of Section 11 he was not bound to refund the sum already paid. He also relied on Section 17 and urged that apart from delivery of possession of the mortgaged property and the connected documents the mortgagor had no other right. 7. As the O.M.L. Act is a special later Act enacted for the purpose of giving relief to debtors it is obvious that the provisions of Section 11(1) of that Act would override the provisions of Section 76(h) of the T.P. Act even though in the opening words of Sub-section (1) of Section 11 of the O.M.L. Act it was not expressly stated that those provisions would prevail 'notwithstanding anything a the contrary contained in any other law or anything having the force of law'. But as respects those matters which are not covered by Section 11(1) of the O.M.L. Act the provisions of Section 76(h) of the T.P. Act would continue to regulate the rights between the mortgagor and the mortgagee. Similarly, Section 17 of the O.M.L. Act which is a special later section dealing with the discharge or usufructuary mortgages would override not only the provisions of Section 11(1) of that Act but also the provision of Section 76(b) of the T.P. Act; as respects matters specially provided for therein. 8. Prior to the 11th June, 1947, Section 17 of the Act had no application to usufructuary mortgages created prior to commencement of the O.M.L. Act on the 21st June, 1939, The result was that in respect of pre-1939 usufructuary mortgages, the rights between the mortgagor and the mortgagee were regulated by Section 76(h) of the T.P. Act subject of course to the provisions of Sub-section (1) of Section 11 of the O.M.L. Act; which in terms was made applicable to loans "advanced before the commencement of the Act". Under that Sub-section Courts were authorised to reopen transactions, take accounts between a mortgagor and mortgagee and relieve the debtor of any liability for interest in excess of nine percent simple per annum and to appropriate the excess interest towards satisfaction of the loan. The proviso, however, to that Sub-section is as follows: Provided that nothing contained in this Sub-section shall be deemed to require the creditor to refund any sum which has been paid to him. 9. It was urged relying on this proviso that if any surplus had bee received by the mortgagee whether by way of interest or principal he was not bound to repay the same and that Section 76(h) of the T.P. Act should be deemed to have been superseded by this proviso. This argument overlooks the true significance of or proviso in a statute. The effect of an excepting or qualifying proviso according to the ordinary rules of construction is to except out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it and such a proviso cannot be construed as enlarging the scope of an enactment where it can be fairly and properly construed without attributing to it that effect [Craies: Statute Law, 5th Edn. pp. 202-203.] In Rex v. Dibbin 1910 L.R. PD 57 in considering the meaning of the proviso to Section 1 of the Deceased Wife's Sister's Marriage Act, 1907 which afforded immunity to clergy from an act or omission in the duties of their office, Moulton, L.J. said: The fallacy of the proposed method of interpretation is not far to seek. It sins against the fundamental rule of Construction; but a proviso must be considered with relation to the principal matter to which, is stands as a proviso. It treats it as if it were an independent enacting clause instead of being dependence on the main enactment. If Mr. Mohapatra's argument suffers from the same fallacy and treats the said proviso as if it were an independent enactment though it is dependents on the main provisions of Sub-section (1) of Section 11 of the O.M.L. Act. That Sub-section appears, prima facie, to apply only to excess interest realised above nine per cent simple and not to excess realisation towards principal. That Sub-section appears, prima facie, to apply only to excess interest realised above nine per cent simple and not to excess realisation towards principal. Consequently, if the mortgagee had been paid by way of interest any sum in excess of nine per cent simple per annum he may not be liable to refund that sum by virtue of the said proviso; but if apart from interest, the mortgagee had been paid sums in excess of the principal, the excess realisation towards principal may not be affected by the said proviso and the mortgagor's right for refund of that surplus u/s 76(h) of the T.P. Act may, prima facie, remain unaffected. It is, however, unnecessary to give our decision on this point, because the appeal can be disposed of on other grounds. 10. Section 17 of the O.M.L. Act is a special provision dealing with usufructuary mortgages. It says that "notwithstanding anything to the contrary contained in any other law or anything having the force of law or in any contract...." a usufructuary mortgage shall be deemed to stand discharged after the expiration of fifteen years from the date of the mortgage unless discharged previously. The words italicised show that if the mortgage is discharged prior to the expiry of the period of fifteen years, that section does not apply prior to 11-6-47 that section did have retrospective effect and was intended to apply to usufructuary mortgages created after the commencement of the O.M.L. Act. In respect of those mortgages in which the total sum towards principal and interest at nine per cent simple had not been realised till the expiry of fifteen years from the date of the mortgages the mortgage would, by virtue of that section, be deemed to have been discharged and the only right which the mortgagor would have is the right safeguarded in Section 17(1) itself, that is, the right to obtain delivery of all documents relating to mortgaged property, the right of retransfer of the property and the right to be put in possession. No other right would subsist. 11. Next I take up usufructuary mortgages created before the 21st June, 1939. Section 17(1) of the O.M.L. Act was made applicable to them by virtue of the amendment made in 1947. No other right would subsist. 11. Next I take up usufructuary mortgages created before the 21st June, 1939. Section 17(1) of the O.M.L. Act was made applicable to them by virtue of the amendment made in 1947. These pre-1939 mortgages can be divided into two classes: (i) those in which the total sum due by way of principal plus interest at nine per cent simple had been fully realised prior to the 11th June 1947; (ii) those in which the said total sum had not been realised till that date. As regards the latter class of mortgages there is no difficulty of construction. As soon as the fifteen-year limit expires the mortgage shall be deemed to have been discharged by virtue of Section 17(1) of the O.M.L. Act and the only subsisting tights will be those mentioned in that section. As regards the former class of mortgages, however, difficulties arise because though the Legislature gave retrospective effect to Section 17(1) it did not make express provision to safeguard the rights that might have accrued to the mortgagor and the mortgagee before the 11th June, 1947. 12. It will be necessary at this state to examine the precise significance of the expression 'discharge of a usufructuary mortgage. Is this the same as 'payment or satisfaction of or mortgage debt?' The two expressions appear to have two different meanings. The mortgage debt has been referred to always as a secured loan in the O.M.L. Act and wherever there is mention of payment of the loan in full the expression used is 'satisfaction of the loan' [see Section 10(2) and Section 11(1) (iii). If, therefore, the Legislature intended ill Section 17(1) that on the expiry of the fifteen year's limit the whole of the mortgage debt should be deemed to have been paid off it would have used the words "the secured loan or mortgage debt shall be deemed to have been satisfied" instead of king the expression "the mortgage shall be deemed to stand discharged". There is sufficient authority both in English Law on mortgages and in Indian Law on transfers to justify the view that the expression 'discharge of a mortgage' is somewhat different from 'payment or discharge of mortgage debt' though the former follows as a necessary result of the latter. There is sufficient authority both in English Law on mortgages and in Indian Law on transfers to justify the view that the expression 'discharge of a mortgage' is somewhat different from 'payment or discharge of mortgage debt' though the former follows as a necessary result of the latter. In Fisher and Lightwood's Law of Mortgages (7th edition) 'discharge of mortgages' are dealt with in Par VII and at p. 583 it is observed. Modes of discharged security. A security may be wholly or partly discharged by redemption or release or the benefit of it may be lost by merger or waiver of the security or the debt or by the loss or destruction of the subject of the security. Similarly, in Halsbury's Laws of England (2nd edition) Vol. 23, 'discharge of mortgages' are dealt with in Part IX at pp. 499 to 528 and it is observed that a mortgage may be discharged by (i) redemption, (ii) discharge of debt, (iii) release of security and (iv) merger. Hence, it seems clear that in English Law the expression 'discharge of mortgage' means extinguishment of mortgage and though payment of the mortgage debt is 'one of the modes of such extinguishment it is not the only method. 13. In the Transfer of Property Act also there are some provisions which support the same view. In Section 76(b) we find the words 'discharge of the mortgage money'. This would, in the context, merely mean payment of full mortgage debt. Section 57(a) of the T.P. Act, however, has the following heading: Discharge of encumbrance on sale. As to what the Legislature meant by the word 'discharge' in that section will be apparent from a security of Clause (h) of that section which says that the Could may after proper notice 'declare that the property to be freed from the encumbrance.' These words unmistakably indicate that by the word 'discharge of- encumbrances' the Legislature mean complete freedom from the encumbrance which is the same as the extinguishment of the encumbrance. In Neelamani Patnaik Mussadi v. Sukaduvu Beharu ILR 43 Mad. 803 it was observed, while construing Section 17 of the Registration Act: We think there is a clear distinction between or discharge of a debt and the extinguishment of a mortgage interest though one may be the result of the other. In Neelamani Patnaik Mussadi v. Sukaduvu Beharu ILR 43 Mad. 803 it was observed, while construing Section 17 of the Registration Act: We think there is a clear distinction between or discharge of a debt and the extinguishment of a mortgage interest though one may be the result of the other. This decision has been followed in a later Rangoon decision reported in U That Baung v. Ma Cho AIR 1939 Rang. 277. Though in the O. M L. Act there is no definition of the expression 'discharge of a mortgage' the meaning that may be attributed to it under the provisions of the T.P. Act and under English Law relating to mortgages may properly be given and as a matter of construction it may be held that in Section 17(1) what the Legislature intended was complete extinguishment of the usufructuary mortgage after the expiry of fifteen years whether the mortgage was created before or after the commencement of the O.M.L. Act. No other right remained with either the mortgagor or the mortgagee except the rights specified in that section, the right of the mortgager to take delivery of the documents relating to the mortgaged property and of possession of the property. This inference is further strengthened by a scrutiny of the provisions of Sub-section (2) of Section 17 which was specifically enacted for the benefit of the aboriginals in the agency tracts of Orissa. In that section the Revenue Officer known as the Special Assistant Agent was given power by a summary enquiry to decree ejectment against a parson in possession of the mortgaged property. There is no question of any redemption suit or settlement of accounts between the two. The mortgagee's possession after the expiry of fifteen years limit becomes by operation of law that of a trespasser and he is liable to eviction. 14. Applying the aforesaid construction to the present case the following conclusion emerges. Though on the date of the commencement of the suit under appeal (29-1-47) the two mortgages subsisted subject of course to the result of the redemption suit they were both extinguished by the operation of law on the 11th June 1947 when the amending Act came into force. Applying the aforesaid construction to the present case the following conclusion emerges. Though on the date of the commencement of the suit under appeal (29-1-47) the two mortgages subsisted subject of course to the result of the redemption suit they were both extinguished by the operation of law on the 11th June 1947 when the amending Act came into force. Such extinguishment had retrospective effect in the sense that the Court should assume after the 11th June, 1947 that the two mortgaged were extinguished after the expiry of the fifteen years from the date of their execution, that is the first mortgage was extinguished in 1930 and the second mortgage in 1987. The rights between the parties till 1947 may be divided into two classes: (i) rights that accrued for the period prior to 1937; and (ii) rights that accrued between 1937 and 1947. So far as the latter right is concerned there is no difficulty. The Court must assume that from 1987 there was no mortgage at all and the possession of the mortgagee was that of a mere trespasser. The Legislature while passing the amending Act of 1947 did not, expressly confer on the mortgagor the right to realise damages from the mortgage for such possession which though lawful at that time had by the retrospective operation of the amending Act become that of a trespasser. Applying the well-known principle of retrospective construction it is obvious that the mortgagor will have no remedy against the mortgagee for his possession of the property from 1937 to 1947. He cannot obviously claim the right of taking accounts u/s 76(g) and (h) of the T.P. Act for that period inasmuch as the right of calling for accounts subsists only in respect of possession during the continuance of the mortgage. Once the Court is required to assume notionally that the mortgage is extinguished, possession after the date of such notional extinguishment of the mortgagee would not be possession during the continuance of the mortgage so as to attract the application of Clauses (g) and (b) of Section 76. 15. As regards the pre-1937 rights the position is somewhat difficult. It was urged by Mr. 15. As regards the pre-1937 rights the position is somewhat difficult. It was urged by Mr. Misra that if accounts were taken it would be found that the total usufruct received by the mortgagee before 1937 was much more than the principal and interest at nine per cent simple and that consequently the mortgagor was entitled to the surplus by virtue of Section 76(b) of the T.P. Act. Be urged that unless the right was expressly taken away by the amending Act of 1947 it should be deemed to subsist. Retrospective application of the O.M.L. Act is likely to result in difficulties of this type. Before 1939, the high rate of interest stipulated in the mortgage was lawful and if accounts had been taken on the basis of that interest there could be no question of any surplus. After 1939, however, the interest was limited to nine per cent simple. But the drastic remedy for a usufructuary mortgagor u/s 17(1) was not given to pre-1937 mortgages till 1947. It seems that it will be unfair after 1947 to work out the rights between the parties on the notional assumption that between 1915 to 1937 Sections 10 and 11 of the O.M.L. Act should be deemed to have been in force a as to scale down the interest and to ascertain whether any sum was appropriated by the mortgagee towards principal. If the Legislature intended to retain this right to the mortgagor it would have clearly said so in amending Act of 1947. On the other hand, the plain words of that section seem to indicate that unless the mortgage was discharged previously it should be deemed to be completely extinguished after the expiry of fifteen years from the date of the execution and the only rights which would subsist would be the rights expressly recognised in that section. Such a construction may undoubtedly cause some hardship to the mortgagor an I fully appreciate the force of Mr. Misra's argument that inasmuch as the O.M.L. Act was passed for the benefit of the debtor Section 17 should not be so construed as to cause him any injury. But such anomaly is bound to arise in any retrospective application of the O.M.L. Act. Moreover, the mortgagor is partly to blame in this respect. Misra's argument that inasmuch as the O.M.L. Act was passed for the benefit of the debtor Section 17 should not be so construed as to cause him any injury. But such anomaly is bound to arise in any retrospective application of the O.M.L. Act. Moreover, the mortgagor is partly to blame in this respect. The O.M.L. Act came into force in 1939 and he was therefore entitled to the benefit of the reduced rate of interest at nine per cent simple per annum allowed for secured loans. If, therefore, he thought that prior to that date the usufructuary mortgagee had realised more than the principal and interest out of the usufruct of the mortgaged property he could have immediately filed a redemption suit and sought the benefits of Sections 10 and 11(1) of the O.M.L. Act. He kept quiet till 1947 with the result that the amending Act of that year came into operation during the pendency of the suit. 16. I am, therefore, of the view that in the present case apart from the rights safeguarded in Section 17(1) of he O.M.L. Act no other rights arising out of two mortgages subsist between the parties. The order of the trial Court is modified as follows: The two mortgages shall be deemed to have been discharged by virtue of Section 17(1) of the O.M.L. Act and the Defendants are directed to deliver up to the Plaintiffs all documents in their possession or power relating to the mortgaged property and if so required by the Plaintiffs they shall retransfer the property to them at the Plaintiff's costs free from the mortgages and from all encumbrances created by them or those claiming under them and shall also put the Plaintiffs in possession of the property. Both parties should bear their own costs throughout. Mohapatra, J. 17. I agree.