Judgment :- 1. The short question in this second appeal by the plaintiff, is whether the courts below were right in holding that the suit herein, for redemption of Ext. B2 mortgage of 1887 was not maintainable on the ground that the right to redeem had been extinguished by order of court within the meaning of the proviso to S.60 of the Transfer of Property Act and so proceeding to dismiss the suit in limine. 2. The order of court whereby the right to redeem was alleged to be extinguished, was contained in Ext. BI prior decree for redemption of the selfsame mortgage, passed on 10-6-1913 at the instance of the original mortgagor against the original mortgagee, the parties to this suit being only assignees respectively from them. It was to the effect that if the mortgage amount and value of improvements due to the mortgagee were not paid on or before 10-9-1913 (i. e.) within three months of the date of the decree, "the plaintiff shall be debarred from all rights to redeem the properties". Admittedly no amount was paid as directed and the contention was raised and now been accepted by the courts below that on account of the failure to pay as per the order, the consequence mentioned in the order that the plaintiff shall lose his right to redeem followed inevitably. 3. Now the provision in Ext. BI decree as aforesaid was modelled on the last paragraph of S.92 (since repealed by the Civil Procedure Code, 1908) the relevant portion of which ran as follows: that, if such payment is not made on or before the day to be fixed by the Court, the plaintiff shall (unless the mortgage be simple or usufructuary) be absolutely debarred of all right to redeem the property ..................... But this was followed by S.93 (also since repealed by the Civil Procedure Code, 1908) which by its second paragraph said, to the extent relevant for our purpose "If such payment is not so made, the defendant may (unless the mortgage is simple or usufructuary) apply to the Court for an order that the plaintiff and all persons claiming through or under him be debarred absolutely of all right to redeem" That is to say, while S.92 provided for the preliminary decree or decree nisi, S.93 provided for the final decree or decree absolute, corresponding to Order XXXIV, R.7 and Order XXXIV, R.8 which replaced them respectively. And the order of the court by which the right to redeem may be extinguished should be the final decree made under S.93 or Order XXXIV, R.8, In Raghunatha Singh v. Hansraj Kanwar, I. L. R 56 All. 561= A. I. R.1934 P. C. 205, the decree directed that in case of default to deposit the mortgage amount within the time fixed, the plaintiff's suit would stand dismissed. But reading S.60, 92 and 93 of the Transfer of Property Act, as it stood then, Their Lord-ships held that the right to redeem is a right conferred on the mortgagor by enactment, of which he can only be deprived by means of any manner enacted for that purpose and strictly complied with. The dismissal of the suit in default was held to be not in conformity with the provisions of the Act and therefore did not have the effect of extinguishing the right to redeem. It must follow Similarly in this case that so long as no final decree under S.93 had been passed, and it is not so claimed either, the right to redeem the mortgage in suit cannot be said to be extinguished. The question may have arisen whether the preliminary decree as originally passed was at all proper in a case of a usufructuary mortgage as here, but there is no gainsaying that if S.92 applied S.93 did also apply. 4. Learned counsel for the respondent-defendant referred to Maruth Babaji v. Manobar, A. I. R.1945 Bom. 307. There, in a suit by the mortgagor to redeem a usufructuary mortgage filed in 1888, the parties came to a compromise and instalments were settled. The mortgagee was to continue in possession till the whole amount was paid. 4. Learned counsel for the respondent-defendant referred to Maruth Babaji v. Manobar, A. I. R.1945 Bom. 307. There, in a suit by the mortgagor to redeem a usufructuary mortgage filed in 1888, the parties came to a compromise and instalments were settled. The mortgagee was to continue in possession till the whole amount was paid. On default of any two instalments, the right to redeem was not to remain. This compromise was filed under S.44, Dekkhan Agriculturists' Relief Act, 1889. The mortgagor committed default in payment and the mortgagee in 1894 applied to foreclose the mortgage. The court having held that S.93 of the Transfer of Property Act was Hot applicable ordered that no fresh order was necessary. Nothing happened for 40 years and the mortgagor in 1938 filed a fresh suit for redemption. It was held that by reason of the decree in the year 1889, the right of the mortgagor to redeem the mortgage was extinguished and, therefore, the suit to redeem the same did not lie and was barred by the principle of res judicata. But this decision can form no support to learned counsel. For, the learned judges did not say that in a case governed by the Transfer of Property Act an order contemplated under S.93 extinguishing the right to redeem in pursuance to a preliminary decree under S.92 was not necessary. They said however that line of reasoning could not hold because the decree was passed in 1889 long before the Transfer of Property Act came into force in the Bombay Presidency for the first time in 1893. "When therefore as the law then stood there was no provision for passing a decree nisi and then a decree absolute, the order of the First Class Subordinate Judge could not be in conformity with the provisions of the law which came into force four years later" And they relied upon the provision embodied in S.15 of Regulation.5 of 1827 which provided the law governing the relations of the mortgagors and the mortgagees prior to the year 1893, that, "in the absence of any special agreement or recognised law or usage to the contrary, either party may at any time, by the institution of a civil suit, cause the property to be applied to the liquidation of the debt, the surplus, if any, being restored to the owner". So much so there was nothing illegal in the decree based on the consent of the parties that the right to redeem shall be extinguished on default of payment of all instalments. 5. It follows therefore that the view of the courts below that the suit herein for redemption is not maintainable, is incorrect and the dismissal of the suit on such ground was unjustified. But as the rest of the issues have not been tried, the suit has necessarily to go back. 6. I therefore allow the appeal and remand the suit to the trial court for fresh disposal after trial of the rest of the issues, in the light of the above observations and according to law. The defendant will pay the costs of the plaintiff in this and the lower appellate court. The rest of the costs will be provided for in the decree to be passed by the trial court. Allowed.