Judgement

Appeal (No. 112 of 1927) from a decree of the Chief Court of Oudh (October 12, 1926) varying a decree of the Subordinate Judge of Rai Bareli.

The appellant brought a suit to enforce a mortgage of April 8, 1923, by sale of the mortgaged property, or for a money decree for the amount owing. The Subordinate Judge made a decree in the usual form for the payment of the mortgage money by sale. He held that the mortgage in question was a combination of a simple mortgage and an usufructuary mortgage so that it was governed by s. 68 of the Transfer of Property Act (Act IV. of 1882). The Chief Court, differing from the Subordinate Judge, held that the mortgage was an anomalous mortgage governed by its own terms by virtue of the provisions contained in s. 98 of the Act, so that the only remedy to which the mortgagee was entitled was for possession of the mortgaged property under the terms of the mortgage deed.

The terms of the mortgage appear from the judgment of the Judicial Committee.

1929. Feb. 22. Dunne K.C. and S. Hyam for the appellant.

The respondents did not appear.

March 15. The judgment of their Lordships was delivered by

LORD TOMLIN. This is an appeal by the plaintiff in