The main legal point established is that the sale in execution of a mortgage decree, where the mortgagee acquires the share of a mortgagor, severs the integrity of the mortgage, allowing for only partial redemption.

Reuben, J.

1. This appeal by the plaintiff is directed against a decision of the Additional Subordinate Judge of Purulia, dated the 25th July 1945, dismissing an appeal against decision of the Munsiff of Raghunathpur, dated the 24th March 1945. A cross-objection was filed in the lower appellate Court. This has been allowed and the suit has been remanded for a fresh decision on Issue No. 7 framed by the Munsiff and also on new issues directed to be framed by the Subordinate Judge. The appeal arises out of a suit for redemption.

2. The mortgaged property consists of a one anna share in a Kheraj brahmottar interest in mouza Mettala. The Kheraj brahmottar interest to the extent of four annas was held by four brothers, Haii Lall Tewari, Madhu Lall Tewari, Thakur Lall Tewari and Jatan Lall Tewari, each of the brothers being entitled to an interest of one anna. The one anna interest of Madhu Lall Tewari was mortgaged by his grandson, Jaso-danandan Tiwari (defendant No. 5), on the 26th May, 1921, to one Siva Narayan Mishra, father of defendants Nos. 1 to 3 and husband of defendant No. 4. Subsequent to this mortgage, on the 3rd November 1924, the Tewaris of the four branches executed an arpannama, dedicating some of the Kheraj brahmottar interest to Sri Sri Durga Mata for the purpose of Durga Puja. This arpannama included some of the mortgagee sued on the foot of his mortgage (Mortgage Suit No. 103 of 1934), and got a decree for sale. In this suit, the Diety was not impleaded. In execution of the decree, Kanai Lal Mudi (Defendant No. 6), purchased the mortgaged property on the 9th of December 1935, in full satisfaction of the decretal dues and got delivery of possession on the 3rd April 1936. Subsequently he sold his interest to defendants Nos. 8 and 9, who have themselves transferred a three pies share out of this interest to defendants Nos. 10 to 13. The present suit has been brought by the piety, represented by plaintiffs Nos. 1 to 6 as sebaits, for redeeming the entire mortgage. They have impleaded as defendants, defendants Nos. 8 and 14, whom they describe as sebaits of the Diety, alleging that they are unwilling to join as plaintiffs. According to the plaintiffs, two members of each branch of the family were appointed as sebaits of the Diety, plaintiffs Nos. 1 and 2 representing the branch of Hari Lall, Plaintiffs NOS. 5 & 6 the branch of Madhu Lall, plaintiffs Nos. 3 and 4 the branch of Thakur Lall, and defendants 8 and 14 the branch of Jatan Lall.

3. The defence substantially was that the de-bottar grant was not valid, and that it was not acted upon, and, finally, that even if it was a valid and effective grant, the plaintiffs are entitled to redeem only the property governed by the grant and not the entire mortgaged property.

4. The Munsiff, in a detailed and painstaking judgment, decided the first two points in favour of the plaintiffs. The third point he decided in favour of the defendants and decreed the suit accordingly.

5. An appeal was filed against this decision by the plaintiffs. There was a cross-objection by the defendants. On the point regarding partial redemption, the Subordinate Judge agreed with the Munsiff and dismissed the appeal. As regards the validity of the grant, he considered that further investigation was necessary on certain points specified by him and directed the Munsiff to investigate them after giving the parties an opportunity of adducing fresh evidence thereon. He considered that the Munsiff had not properly discussed the evidence on the record as to whether the arpannama had been acted upon. He, therefore, set aside the Munsiffs finding on the point and directed him to give a fresh finding on a reconsideration of the evidence "according to law."

6. The first point urged by Mr. Ghosh on behalf of the appellants is that, by the dismissal of the appeal, the Subordinate Judge confirmed the decree for partial redemption and, therefore, the order remanding the case was without jurisdiction. It