JUDGMENT D.P. Sood, J.—This second appeal under section 100 of the Code of Civil Procedure arises out of the decree and judgment of the learned District Judge, Solan and Sirmaur Districts at Nahan, passed on July 23, 1985, in Civil Appeal No. 40/N/13 of 1984, whereby the plaintiffs suit for possession of the property in dispute by way of redemption, as decreed by the trial Court, was held to have been satisfied because of the delivery of possession thereof by the defendant in favour of the plaintiff. However, the further relief for recovery of Rs. 25,000 as damages for illegal use and occupation of the shop in dispute, though decreed by the trial Court, was dismissed. 2. The facts, which are necessary for understanding the controversy between the parties in this appeal, may be shortly stated as follows : 3. Plaintiff filed a suit for redemption of a mortgaged shop in dispute located in khasra Nos. 1632 and 1634 situate in Bara Chowk, Nahan Town, vide registered mortgage deed dated 4-8-1969 (Ex. PB) in favour of the defendant for a sum of Rs. 8,000, As per the terms and conditions of the deed, the rent payable by the mortgagee as lessee, was agreed to be adjusted towards interest payable on the mortgaged property inasmuch as per the terms, interest was agreed to be charged at Re. 1 per month. As per the other terms, the mortgagee could effect white washing at his discretion. However, he could not effect repairs in the shop. Regarding it, the recital therein is that in case of any repairs, the same was to be carried out by the plaintiff immediately and in case the mortgagee wanted to carry out the same, he was required to serve a notice upon the mortgagor, i. e. the plaintiff and only after such notice, the mortgagee was entitled to conduct the repairs. It was further agreed that the mortgagee would maintain correct and clear accounts of such repairs, which he would be entitled to recover with interest at the rate of 12% per annum for the mortgagee. 4. The case set up by the plaintiff is that the aforesaid mortgage was effective for eight years and she was entitled to redeem the same on payment of the mortgage amount of Rs. 8,000. She avers that she issued three registered notices on March 31, 1977 (Ex. 4. The case set up by the plaintiff is that the aforesaid mortgage was effective for eight years and she was entitled to redeem the same on payment of the mortgage amount of Rs. 8,000. She avers that she issued three registered notices on March 31, 1977 (Ex. PC), July 1, 1977 (Ex. PE) and July 26, 1977. Through all these notices, the plaintiff had expressed her desire to get the property redeemed. Defendant having not responded to the first two notices, the plaintiff annexed a pay order of Rs. 8,000 with the third notice dated 26th July, 1977 (Ex. PG). However, this time, the defendant returned the pay order through registered envelop which is Ex. PW 1/G but the same was refused to be accepted by the plaintiff. The aforesaid pay order was drawn on Punjab National Bank, Nahan. The possession of the shop in dispute having not been delivered by the defendant to the plaintiff, she claimed compensation at the rate of Rs. 100 per day as damages by way of use and occupation thereof and thus, the relief with respect to the recovery of Rs. 25,000 as mesne profits was also added in the suit. 5. Defendant contested the suit simply on the ground that though the pay order was received but it was sent back alongwith the reply of the notice to the effect that he claimed certain amounts regarding the repairs conducted by him in the property in dispute. In short, the defendant disputed that the property stood not redeemed and, therefore, the plaintiff was not entitled to any mesne profits or the possession of the property, unless full amount thereof is paid to him. 6. The trial Court, without conforming to the rules under Order 34 of the Code of Civil Procedure, particularly Rules 7, 8 and 10 A, passed a decree for possession of the shop in dispute subject to the plaintiffs depositing the mortgage amount of Rs. 8,000 within 60 days from the date of passing of the decree and also allowed a decree for the mesne profits to the tune of Rs. 25,000 as claimed by the plaintiff. 8,000 within 60 days from the date of passing of the decree and also allowed a decree for the mesne profits to the tune of Rs. 25,000 as claimed by the plaintiff. The learned District Judge did not go into the question of validity of the decree on this count, for the reason that the possession of the property in dispute had been delivered to the plaintiff by the mortgagee-defendants and the decree in this behalf, was not assailed by the plaintiff. The parties to the instant proceedings, confined their case only to the controversy as to whether the plaintiff was entitled to a decree for the mesne profits as claimed before that Court, which resulted in passing of the impugned order. 7. In this appeal, Shri Chhabil Dass, learned Counsel for the appellant has put forward two contentions : (i) that tender of pay order in the sum of Rs. 8,000 accompanied with notice dated 26-7-1977 (Ex. PG) received by the defendants on the following day, amounted to a valid legal tender towards the redemption of the mortgage irrespective of its return as alleged by the defendant; (ii) that in case it is held to be a valid tender, then defendant became an unauthorised occupant of the shop in dispute from 4-8-1977 onwards and he is liable to pay the amount of compensation for the use and occupation of the premises subsequent thereto upto the date of handing over of the possession of the shop in dispute. 8. On the contrary, Kanwar Kuldip Singh, learned Counsel for respondent has vehemently urged that there was no valid legal tender, entitling the plaintiff to claim mesne profits and, thus, the view taken by the learned District Judge is correct. 9. In view of the changed circumstances during the pendency of the suit, it is unnecessary to go into various other points of controversy urged by the learned Counsels, because I am only concerned with the determination of the controversy as to whether the plaintiff is entitled to recover the mesne profits as claimed or a portion thereof. Before deciding the controvertial points, it may be observed that the mortgage can be redeemed with the intervention of the Court and without the intervention of the Court. Where the mortgagor passes back the mortgage money without the intervention of the Court, the mortgage stands redeemed. Before deciding the controvertial points, it may be observed that the mortgage can be redeemed with the intervention of the Court and without the intervention of the Court. Where the mortgagor passes back the mortgage money without the intervention of the Court, the mortgage stands redeemed. Through the intervention of the Court, the suit for possession by way of redemption has to be filed and the Court at first instance passes a preliminary decree so that the account is taken as to what was due to the plaintiff at the time of decree and the Court has to make a declaration regarding the amount so due at that time. Thereafter, the Court directs the mortgagor to pay or deposit that amount in the Court on or before some specific date fixed by the Court but within six months as prescribed in the Code and if the plaintiff deposits the amount so due in the Court within the period specified by the Court, the Court passes the final decree. 10. The first point in controversy can be easily decided in case the nature of repairs effected in the shop in dispute is determined and if we bear in mind the provisions of the Transfer of Property Act relating to repairs. Section 72 lays down that a mortgagee may spend such money as, is necessary for the preservation of the mortgaged property from destruction and may, in the absence of a contract to the contrary add such money to the principal money. This head will include the cost of repairs of the mortgaged property : Arunachella v. Sithayee Ammal, ILR 19 Mad 327 ; Ibrahim v. Arumugathayee, AIR 1916 Mad. 859. Section 76 states that when during the continuance of the mortgage the mortgagee takes possession of the mortgaged property, he must, in the absence of a contract to the contrary, make such necessary repairs of the property as he can pay for out of the rents and profits thereof after deducting from such rents and profits the payments mentioned in Clause (c) of that section and the interest on the principal money (see Clause (d) also). 11. 11. This clause imposes on the mortgagee in possession the liability to make such necessary repairs of the mortgaged property as can be done out of the balance remaining after deducting from the rents and profits the payment mentioned in Clause (c) and the interest on the principal money. To the extent of the balance, his liability to make the necessary repairs is paramount. Shiva Devi v. Jam Heggade, ILR 15 Mad 290. If loss is caused to the mortgagor by his failure to make such necessary repairs it may be debited against the mortgagee in the accounts to be taken in the settlement of the mortgage : (ibid). 12. He is, however, not bound to spend money any further than to keep the estate in necessary repairs. Nor is he bound, where the expenditure on the necessary repairs is likely to exceed the balance in his hands, to spend money out of his own pocket. If he does spend money out of his own pocket, he cannot claim repayment from the mortgagor under this clause but will be allowed to add the expenditure to the principal money under section 72, Clause (b) if it is incurred for the preservation of the property from destruction : Sheo Nandan v. Mohammed Khalik, AIR 1929 All 777. The provisions of this clause are not absolute but are subject to a contract to the contrary. 13. As observed above, according to the recitals of the mortgage deed (Ex. PB), defendants could not effect repairs except after service of the notice on the plaintiff and the latters failure to effect repairs immediately. In the instant case, the defendant in his written statement did not plead that he notified the plaintiff for effecting repairs. His simple case, as set up in paras 7 and 8 of his written statement, is that he returned the pay order to the plaintiff under Registered AD cover refusing to accept the payment of Rs. 8,000 only as the plaintiff had not sent the cost of repairs incurred by him on the suit property during the existence of the mortgage which later the plaintiff refused to accept. His further contention is that he did intimate the plaintiff to settle the accounts of repairs etc. 8,000 only as the plaintiff had not sent the cost of repairs incurred by him on the suit property during the existence of the mortgage which later the plaintiff refused to accept. His further contention is that he did intimate the plaintiff to settle the accounts of repairs etc. and the latter knowing fully well that she was unable to manage and pay the value of repairs, wilfully refused to accept the Registered AD cover Ex. DW-1/H including the pay order sent to her. 14. The perusal of the judgment of the first appellate Court shows that the said Court has not viewed the case from this point of view. The terms and conditions in the registered mortgage deed Ex. PB show that the mortgagee was entitled to effect white washing etc. i.e. minor repairs at his discretion during the subsistence of mortgage but in case the premises required major repairs, the mortgagee was required to serve notice upon the mortgagor for effecting the same and in case of default of mortgagor, the mortgagee could then effect the said necessary repairs at the cost of the plaintiff. The case set up by the defendant in his reply Ex DW-l/H to the notice is that he had been effecting white washing (small repairs) annually which costs him Rs. 100 per annum. In the reply, it is also stated by him that he served notice upon the plaintiff Bimla Devi to do the repairs of the premises and to keep the same tenable and to save the same from collapse, but no steps were taken. However, if the pleadings as contained in the written statement are closely examined, no such contentions have been raised. In his statement, the defendant as DW 1 has categorically stated that in the year 1975, three Karies of the roof of the shop in question had almost come down "Latki Hui Thi" and in the rainy season of that year, water collected in the rear portion of the shop due to which the defendant suffered huge losses. In his statement, the defendant as DW 1 has categorically stated that in the year 1975, three Karies of the roof of the shop in question had almost come down "Latki Hui Thi" and in the rainy season of that year, water collected in the rear portion of the shop due to which the defendant suffered huge losses. Resultantly, he was forced to seek the advice of Shri P.D. Tiwari, Junior Engineer in this respect, who in turn asked the defendant to change the said Karies (rafters) and also to lay cement floor thereafter on the roof of the said shop ; that he also told him that in otherwise case, the roof and walls of the shop in question were likely to collapse. This shows that the repairs were of major nature and not minor one. In that view of the matter, the defendant was bound to serve notice upon the mortgagor-plaintiff. No doubt, defendant in his statement, has categorically stated that he alongwith Bhupender DW, had notified the plaintiff and PW 1 about the effecting of repairs during the rainy season of 1975, but this statement of the defendant cannot be relied upon, in view of the fact that this aspect of the case has neither been pleaded in his written statement nor a suggestion to this effect has been put in cross-examination of Shri Om Parkash Mittal, PW 1, who is the husband of the plaintiff and who, as per the defendant as also aforesaid Bhupender, DW, was present at the time when they visited their house at the relevant time and asked the plaintiff to effect repairs in the shop which was otherwise likely to collapse. In this view of the matter, the pleadings of the defendant are at variance with that of the proof adduced by him and the same cannot at all be looked into. The learned trial Court has held under issue No.1 that the defendant has failed to prove that he effected repairs to the shop in question in accordance with the terms and conditions of the mortgage deed. The learned appellate Court has not properly considered the evidence in this case from this perspective. To my mind, the trial Court was right in holding that the defendant had failed to prove that the repairs were effected in terms of the mortgage deed (Ex. PB), under discussion of issue No.3. The learned appellate Court has not properly considered the evidence in this case from this perspective. To my mind, the trial Court was right in holding that the defendant had failed to prove that the repairs were effected in terms of the mortgage deed (Ex. PB), under discussion of issue No.3. From this perspective, the first appellate Court is a Court of fact. The learned District Judge has neither considered the pleadings of the parties nor the case actually set up by them. He has based his finding on evidence which could not be looked into. Thus, the non-consideration of relevant facts and circumstances led him to a wrong conclusion It was essentially an erroneous approach to the matter. Thus, in the circumstances, this Court is not precluded from recording proper findings, I am supported in taking this view by the observations made in the case of Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604. Thus,. to my mind, the plaintiff has failed to prove that he effected repairs in the shop in dispute, according to the terms and conditions of the mortgage deed (Ex. PB). 15. This leads me to the next question as to whether tender of the mortgaged sum by way of pay order was legal and valid ? As per the mortgage deed, the mortgaged money was to be paid on or before 4-8-1977, i. e. after the expiry of the tenure of mortgage. As indicated above, the plaintiff had tendered the amount by way of pay order in the sum of Rs. 8,000 alongwith the notice dated 26-7-1977 (Ex. PG) which was admittedly received by the defendant on 27-7-1977. 16. Now, according to section 50 of the Contract Act, 1872, the performance of any terms may be made in any manner, or at any time which the promisee prescribes or sanctions This rule is elementary. The question is whether the above said mode of payment, adopted by the plaintiff, amounted to a lawful tender. It is to be noted that there is no specific agreement in between the parties regarding the mode of payment of the mortgaged amount. Payment order, being equivalent to cash payment, amounts to a valid discharge of the obligation. The debtor has to pay his creditor in cash or other legal tender. It is to be noted that there is no specific agreement in between the parties regarding the mode of payment of the mortgaged amount. Payment order, being equivalent to cash payment, amounts to a valid discharge of the obligation. The debtor has to pay his creditor in cash or other legal tender. No such objection has been raised by the defendant that mode of payment of the mortgaged money had been specifically agreed to in a particular way. In the absence thereof and in the contemporary society, it is reasonable to suppose that the mode of payment either in cash or through other legal tender was implied in between the parties to the instant suit. Thus, there is a substantial force in the first contention of the learned Counsel for the appellant. 17. Adverting to the second contention, suffice it to state that valid tender or the mortgaged amount having been made by the plaintiff, she was entitled to possession of the shop in dispute from 4-8-1977. However, it continued to be occupied by the defendant on the simple ground that costs of repairs had not been paid by the former alongwith the mortgaged amount so sent through pay order. I have already observed above that major repairs were effected without notifying the plaintiff under the terms of the mortgage deed. Thus, the defendant became an unauthorised occupant of the shop from 4-8-1977. Having held so, the next question to be determined is as to what amount of compensation for the use and occupation of the premises, the plaintiff is entitled to ? Admittedly, according to the mortgage deed, the amount of interest at the rate of 12% per annum was to be adjusted towards the rent. In other words, the agreed rent in respect of the shop in dispute was Rs. 80 per month. The claim of the plaintiff is at the rate of Rs. 100 per day. It is well settled that in case a person is found to be in illegal occupation of the premises in dispute, the owner thereof is entitled to recover reasonable compensation for the period, the person unauthorisedly occupies the premises. The compensation has been sought for 25 months from 4-8-1977 onwards. 100 per day. It is well settled that in case a person is found to be in illegal occupation of the premises in dispute, the owner thereof is entitled to recover reasonable compensation for the period, the person unauthorisedly occupies the premises. The compensation has been sought for 25 months from 4-8-1977 onwards. To my mind, keeping in view the condition of the shop in dispute as also the fact that defendant had spent amount in effecting not only minor but also major repairs thereto, though without notifying the plaintiff, the reasonable compensation for unauthorised use and occupation of the shop in dispute may be held to be at the interest rate of Rs. 100 p.m. Plaintiffs claim is an exaggerated one whereas the defendant has attempted to prove on record that the rent of the shop in question was even less than Rs. 80 at the time when usufructuary mortgage was created. He himself has agreed that Rs. 80 per month is to be considered as the rent of the shop and the same is to be adjusted towards the which may accrue upon the mortgaged amount of Rs. 8,000. Thus, to my mind, the interest of justice would be met in case the plaintiff is held entitled to the compensation at the aforesaid rate of Rs. 100 per month for the unauthorised use and occupation of the premises in question by the defendant. Therefore, I hold that plaintiff is entitled to a decree for an amount of Rs. 2,500 only. To this extent, the judgment of the first appellate Court is liable to be set aside and that of the trial Court needs modification. Point (ii) is decided accordingly. 18. In view of the discussion made above, the impugned judgment and decree of the first appellate Court are set aside and that of the trial Court is restored, with the modification that a decree in the sum of Rs. 2,500, with proportionate costs, is passed in favour of the plaintiff and against the defendant. The appeal stands disposed of in terms of the above. Order accordingly.