Judgment :- 1. The appeal arises out of a suit for recovery of the profits of mortgaged property. Nallaperumal Pillai Lekshmanaperumal Pillai executed a usufructuary mortgage in respect of the plaint properties to the defendant. The latter sued in O.S. No.73 of 1112 alleging that he had not been given possession of the mortgaged properties. A decree for recovery of the mortgage amount and loss of profits charged on the properties, as well as recovery of possession of the properties were sought for in that suit. The suit ended in a compromise decree under which the mortgagor acknowledged receipt of the mortgage amount as well as his liability to account for profits. The mortgagor was allowed to retain possession of the properties on payment of Rs. 300 per annum as rent. The decree further provided that the mortgagor was to pay the mortgage amount also in two instalments and that in case of default of payment on the due dates, the defendant was to recover possession of the properties. The defendant also undertook to surrender possession of receipt of the whole amount due to him as mortgage money and rent. Ext. II is copy of the decree. The mortgagor failed to pay the amounts on the due dates and the defendant recovered possession of the properties on 5.6.1115. After the death of Lekshmanaperumal Pillai, the plaintiff in this suit purchased the properties from one of his widows and on 26.1.1118 he deposited in the execution court, the mortgage money and the other amounts payable under the decree. He also applied for recovery of possession of the properties. The defendant accepted notice on 2.2.1118 and on 3.2.1118 he applied for time to file objections. An order for delivery of possession was passed on 8.2.1118. The defendant preferred an appeal to the High Court of Travancore as A.S. No. 123 of 1118 and obtained an order staying execution proceedings on the same day. The appeal was disposed of by the High Court on 24.2.1118 setting aside the order for delivery and remanding the matter for fresh decision. On 4.6.1119 the execution court again passed and order for delivery of possession. The defendant took up the matter again in appeal as A.S. No. 361 of 1119 and obtained another order of stay of proceedings on 7.6.1119. That appeal was also dismissed and the records were received in the execution court on 17.7.1119. On 4.6.1119 the execution court again passed and order for delivery of possession. The defendant took up the matter again in appeal as A.S. No. 361 of 1119 and obtained another order of stay of proceedings on 7.6.1119. That appeal was also dismissed and the records were received in the execution court on 17.7.1119. Thereafter the plaintiff obtained delivery of possession on 26.7.1119. This suit was instituted for recovery of profits of the property for the period from 25.1.1118 to 26.7.1119. The plaintiff claimed a sum of 25662 Fs. Ch.1 and cash 10 as profits inclusive of interest. A statement showing the income of each property was also appended to the plaint. The defendant denied liability for the amount claimed. According to him, his possession was never wrongful. It was contended that he remained in possession on the strength of orders of stay issued by the High Court and that his possession during the period could not therefore be deemed wrongful. The question of mesne profits claimed was also denied. The defendant's case was that profits of the properties would not exceed Rs. 300 per annum. At the time of final hearing he raised a contention that the suit was barred by limitation under Art.109 of the Limitation Act. All the defence contentions were overruled and the plaintiff was given a decree as prayed for. The defendant has therefore preferred this appeal. 2. Three points were raised on behalf of the appellant. The first was that the suit was barred by limitation under Art.109 of the Indian Limitation Act. It has to be stated that the defendant did not raise this point in his written statement. However he was allowed to raise the same at the time of final hearing. The court below held that the suit was governed by Art.105 and not Art.109 of the Limitation Act. In this view, it was held that the suit was not barred by limitation, as the same was brought within three years of the date on which the plaintiff obtained possession of the properties. Even though the plea of limitation was not raised in the pleadings the court below chose to consider the same. Under S.3 of the Limitation Act the court is bound to consider the question of limitation even though it has not been set up as a defence. Even though the plea of limitation was not raised in the pleadings the court below chose to consider the same. Under S.3 of the Limitation Act the court is bound to consider the question of limitation even though it has not been set up as a defence. It is therefore necessary to see whether the suit is barred by limitation. The appellant's case is that the suit is one for recovery of mesne profits and that such a suit is governed by Art.109 of the Limitation Act. The two Articles are extracted below. Art. 105: 3. In our opinion this is a suit falling under Art.109, as the relation of mortgagor and mortgagee came to an end when the mortgage money was deposited in the execution court as provided by the decree. Under the terms of the decree the defendant was bound to surrender possession of the properties forthwith. A similar question arose in Sahari Dutt v. Sheikh Ainuddy (14 Cal. W. Notes 1001). It was contended in that case that the relation of mortgagor and mortgagee did not cease on payment into court by the mortgagor of the amount determined as due by the redemption decree. Their Lordships observed. "In our opinion, there is no foundation for this contention. The case upon which reliance is placed turned upon the construction of S.89 of the Transfer of Property Act, and it was ruled there that the relation of mortgagor and mortgage did not cease as soon as the decree was made absolute, but it continued till the property had been sold and the proceeds applied in satisfaction of the mortgage decree. By analogy it is obvious that as soon as the mortgagor deposits in court the amount determined as due under the redemption decree, the relation of the mortgagor and mortgagee ceased, and it is immaterial whether the mortgagee receives payment of such sum, and delivers possession of the property to the mortgagor. If the contrary view were maintained, it would be impossible to justify on principle the position that the mortgagor becomes entitled to possession of the property immediately upon payment of such sum into court, because if even thereafter the relationship of mortgagor and mortgagee continues it is difficult to appreciate at what precise point of time the relationship would subsequently cease, so as to entitle the mortgagor to recover the property from the mortgagee". 4. 4. Learned counsel for the Respondent brought to our notice the decision in Ram Din v. Bhup Sinkh (ILR 30 All. 226). This decision has no application to the facts of this case. The question in that case was whether a later suit for surplus collection of profits made by the mortgagee during the subsistence of the mortgage was barred under S.43 of the Code of Civil Procedure, corresponding to 0.11 R.2 of the present Code. No doubt there is an observation that Art.105 contemplates a case other than that of redemption in execution of a decree for redemption. In Muhammad Favz Ali Khan v. Kallu Singh (33 All. 244) it was observed that the expression of opinion in 30 All. 225 regarding Art.105 was a mere obiter dictum. Their Lordships further observed that if permission to bring a subsequent suit for surplus profits had been given under O. II R.2, there was no reason why Art.105 should not apply to such a case. It may also be mentioned that the decision reported in 30 All. 225 was considered by the Calcutta High Court in 14 Cal. W. Notes 1001, and was distinguished. Another decision relied on by the Respondent is Bikramajit Singh and others v. Raj Reghubar Singh and another (AIR 1917 Oudh 200). That was a suit arising out of a mortgage transaction. The mortgage was for a sum of Rs. 80000. Its terms were that the mortgagee was to take possession of the property, that he should be entitled to realise the whole income with the exception of certain items, that he should pay himself therefrom interest at the rate of 7 annas per cent per month and that he should pay the balance annually to the mortgagors. At the end of seven years, redemption was to be made on payment of the principal amount. The profits to be appropriated by the mortgagee was to be settled by an agreement embodied in the mortgage deed at a fixed sum of Rs. 11000 per annum, irrespective of the actual amount collected. Possession was restored to the mortgagors without a suit for redemption. After obtaining possession, the mortgagors instituted a suit for surplus profits collected by the mortgagee. The defendant contended inter alia that the suit was barred by limitation. This plea was overruled holding that Art.105 of the Limitation Act was applicable. 11000 per annum, irrespective of the actual amount collected. Possession was restored to the mortgagors without a suit for redemption. After obtaining possession, the mortgagors instituted a suit for surplus profits collected by the mortgagee. The defendant contended inter alia that the suit was barred by limitation. This plea was overruled holding that Art.105 of the Limitation Act was applicable. This decision, if we may say so with respect, correctly lays down the law but it is not applicable to the facts of this case. The claim in the Oudh case was for surplus profits appropriated by the mortgagee during the subsistence of the mortgage, whereas what is claimed here is profits taken by the defendant after the relation of mortgagor and mortgagee came to an end with the deposit of mortgage money in court. The profits taken thereafter by the defendant cannot be deemed profits taken by the mortgagee. Art.109 should therefore govern this case. 5. Under Art.109, the plaintiff would get only a period of three years from the date the profits were received. The plaint in this suit was filed on 8.4.1122 and the plaintiff is therefore entitled only for the mesne profits from 8.4.1119 unless he can establish that he is entitled to get exclusion of any period under the Limitation Act. Learned counsel for the Respondent urged that he was entitled to claim exclusion of a period of 9 months and 19 days. After recovery of possession in execution, he made an application to the execution court on 2.2.1121 for recovery of profits from the date of deposit of the mortgage money into court. Ext. N is copy of the petition and Ext. M the affidavit filed in support thereof. The argument is that he was prosecuting in good faith and with due diligence another civil proceeding for the same relief in a court which on account of defect of jurisdiction was unable to entertain it. Ext. U is copy of the order dated 21.11.1121 dismissing the petition, Ext. N. The execution court held that the plaintiff's proper remedy was to file a suit for recovery of the amount and he was directed to file such a suit. The petition was accordingly dismissed. This is a case in which neither the plea of limitation nor exemption from the bar of limitation was raised in the pleadings. N. The execution court held that the plaintiff's proper remedy was to file a suit for recovery of the amount and he was directed to file such a suit. The petition was accordingly dismissed. This is a case in which neither the plea of limitation nor exemption from the bar of limitation was raised in the pleadings. As we have considered it proper to deal with the question of limitation even though it was not raised in the pleadings, we are bound to consider the plea of exemption also, especially as the same has been made out by the evidence in this case. The relief prayed for in Ext, N and this suit are identical. The plaintiff in making the application to the execution court was guided by counsel of some standing at the bar. It is true that the execution court had no jurisdiction to grant the relief prayed for in the absence of a provision in the decree relating to the claim for mesne profits after deposit of the mortgage money, but, it cannot be said that the plaintiff was not diligent or that he did not act in good faith. In our opinion, the plaintiff is entitled to claim the benefit of S.14 of the Limitation Act. It may also be observed that it was open for the execution court to treat the petition Ext. N as a suit under S.47 of the Code of Civil Procedure and grant relief. The period of pendency of Ext. N must therefore be excluded in computing the period of limitation. 6. Even the benefit of S.14 of the Limitation Act will not entitle the plaintiff to claim mesne profits from the date of service of notice of deposit, as the effect of giving such exclusion is that he will be entitled to claim mesne profits only from 20.7.1118 i.e. for a period of nearly one year altogether. The properties are mainly paddy fields and this could cover only a period of two crops. 7. Another point raised on behalf of the appellant is that his possession cannot be deemed to be wrongful as he continued in possession by reason of the orders of stay passed by the High Court. The properties are mainly paddy fields and this could cover only a period of two crops. 7. Another point raised on behalf of the appellant is that his possession cannot be deemed to be wrongful as he continued in possession by reason of the orders of stay passed by the High Court. This argument cannot be accepted because the suit is not one for recovery of damages for wrongful orders procured by the defendant but for the profits of the properties which should have gone to the plaintiff and which were appropriated by the defendant. The defendant's possession became wrongful on the date on which he received notice of deposit of the mortgage money. Under the decree he was bound to surrender possession even without an order of the court. The mere fact that he managed to get certain orders from the appellate court staying proceedings in execution cannot help him to evade liability for mesne profits because his possession had become wrongful at an earlier date. The decisions cited by the appellant's counsel are not relevant and it is unnecessary to discuss the same in detail. 8. The third and last point relates to the quantum of mesne profits decreed. The defence contention was that the amount claimed by the plaintiff was very high and that the annual profits would not exceed Rs. 300, which was fixed as rent by the decree. The fact that the defendant allowed the mortgagor to remain in possession on an annual rent of Rs. 300 is quite an irrelevant consideration in deciding the question of mesne profits for which the defendant is answerable. The learned judge took the view that the burden of proving this point was on the defendant. In our opinion this view is quite erroneous. When the claim for mesne profits is denied by the defendant, it is for the plaintiff to prove that his claim is valid. Under S.101 of the Evidence Act, whoever desires the court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. It was observed by the learned judge that the defendant had accounts to prove the income of the property and that he did not produce the same. It was observed by the learned judge that the defendant had accounts to prove the income of the property and that he did not produce the same. The defendant was not called upon to produce such accounts and he had no duty to adduce evidence in proof of the plaintiff's claim. It is not as though the plaintiff was incapable of proving the income of the properties. He was in possession from 26.7.1119 and he could give reliable evidence regarding the profits. There was no difficulty in proving this point by taking out a commission but the plaintiff chose to throw the burden of proof on the defendant. In these circumstances the plaintiff cannot be awarded mesne profits in excess of the admitted amount. The defendant admitted that the annual profits would amount to 25 Kottas of paddy, 300 cocoanuts and Rs. 36. A decree can be given only on this basis and adopting the Nirak rates for paddy prevailing in the year 1119, the plaintiff is entitled to get Rs. 2811/4 for each crop. For two crops he is therefore entitled to Rs.5621/2. Valuing cocoanuts at Rs.6 per hundred, he is entitled to get a sum of Rs.18 under this head. The aggregate amount inclusive of the sum of Rs. 36 admitted by the defendant is therefore Rs. 6161/4, for the period for which mesne profits can be allowed. 9. In the result, the decree of the court below is modified and the plaintiff is given a decree for recovery of Rs. 6161/2 and interest thereon at the rate of 6 per cent per annum from 26.7.1119 till the date of suit. The principal amount will bear interest at the same rate from the date of plaint till the date of decree. He is also allowed to recover interest at the same rate on the aggregate sum, from the date of decree till date of realisation. The appeal is allowed to the above extent and is dismissed in other respects. Proportionate costs are allowed here and in the court below.