JUDGMENT Henry Richards, C.J. and Baneeji, J.
1. The vendors of the plaintiffs in this appeal made a usufructuary mortgage in favour of the defendants of the second party. The consideration for the mortgage was Rs. 599-15-0. All save Rs. 50-15-0 were left with the mortgagees for payment of creditors of the mortgagors. It has been found as the result of certain issues which we referred to the court below that the creditors were prior incumbrancers of the mortgaged property, and that the mortgagee never discharged the incumbrances. The usufructuary mortgage was by way of conditional sale and provided that the property should not be redeemed for ten years. The present suit is in form a suit to redeem the property upon payment of Rs. 50-15-0, which was the full amount of the consideration given by the mortgagees. The defendants, second party, contend that the plaintiffs cannot redeem the property or get possession of it until the expiration of the term of ten years, and this notwithstanding that the prior incumbrances to meet which the greater part of the consideration was left with them have never been discharged by them. Both the lower courts dismissed the plaintiff's suit. On second appeal to this Court the decision of the courts below was affirmed.
2. The plaintiffs came here in appeal under the Letters Patent and contend that inasmuch as the defendants, second party, never kept their part of the bargain by discharging the incumbrances which they agreed to discharge, they ought not to be delayed in redeeming or getting back possession of the property until the end of ten years. It seems to us that if under the circumstances of the present case the defendants, second party, are allowed to remain in possession of the property over the full period of ten years, taking the profits and allowing the interest on the prior incumbrances to accumulate, the plaintiffs will be without any proper or effectual remedy. It is doubtful whether a suit for damages could possibly be brought at the present time, and at the expiration of the period of ten years it will only be an effectual remedy if the defendants, second party, or their representatives are sufficiently good marks for damages. We think that on equitable grounds the defendants not having performed what we deem to be a most essential part of the contract so far as they are concerned, the plaintiffs ought to be allowed to redeem the property fore the expiration of the period of ten years.
3. We accordingly allow the appeal ; set aside the decree of this Court and also the decrees of the courts below, and decree the plaintiffs claim for redemption on payment of Rs. 50-15-0. The appellants will have their costs in all courts. We allow one month for payment of the Rs. 50-15-0 mentioned above. The decree will be drawn up in the usual form.