A mortgagee who is in a fiduciary position to the mortgagor cannot take advantage of his own default in payment of rent to the landlord and purchase the mortgaged property in execution of a rent decree, and claim the benefit of such purchase to extinguish the mortgage interest of the mortgagor.

Sarjoo Prosad, J.

1. The plaintiffs, who are the appellants in this appeal, sued for redemption in respect of four mortgage bonds relating to plots Nos. 296, 831, 850 and 858 of khata No. 109 situate in village Harpur Akauna.

2. The case of the plaintiffs is that the khata in question was their raiyati kasht land, and from time to time their family being in need of money borrowed from the defendants various sums of money under the bonds in suit. The first bond (Ex. 1-c) is dated the 16th of July 1927, under which a sum of Rs. 200.00 was borrowed from the defendant No. 1. The next (Ex. 1-b) is dated the 10th of August, 1928, under which a similar sum of money was borrowed from Doman Das, the husband of defendant No. 9. The third (Ex. 1) is dated the 2nd of June 1930, in favour of defendants 11 to 14 for a sum of Rs. 190, and the last one (Ex. 1-a) is dated the 14th of July, 1930 for Rs. 200/-from the defendant No. 15. The total area given in rehan covered almost the enure khata except for a small area of 2 1/2 kathas of land which is said to have remained in possession of the mortgagors. The plaintiffs alleged that when they wanted to redeem the mortgage, the defendants refused to accept the mortgage dues on the ground that the entire holding had been sold in execution of a rent decree. The plaintiffs learnt that the said purchase was by the defendants-mortgagees themselves in the name of their relations, and that the ex parts rent decree in execution of which the sale had taken place was a fraudulent and collusive decree at the instance of the defendants who had suppressed the processes and got the lands sold in execution with a view to purchase the same. The plaintiffs further stated that the mortgagees in spite of the fraudulent decree and sale continued to be in possession of the property, and their character as mortgagees had never changed, the plaintiffs as such being entitled to redemption. It was also stated by the plaintiffs that under the mortgage deeds in question the mortgagees were liable to pay rent to the landlord and they could not take advantage of their default in paying the rent to the detriment of the plaintiffs in getting the ex parte decree passed and purchasing the property themselves in execution of such a decree with a dishonest, intention of wiping out the mortgage.

3. It may be stated at the outset that the defendants 11 to 14, the defendants third party, who were mortgagees under the rehan bond of the 2nd of June, 1930, in respect of 62 decimals of plots 850 and 858 of the khata in suit, have already compromised with the plaintiffs and allowed the plaintiffs to redeem the bond in question. The dispute is, therefore, confined to the defendants interested in the other three mortgagees. They have in their respective written statements taken up a common defence which in substance is that the decree passed in the rent suit and the sale which followed in execution were good and valid and binding on the plaintiffs; and as a result of the sale the mortgage interest of the plaintiffs had been completely extinguished. They denied that the defendants were liable to pay rent to the landlord for the lands mortgaged to them, and, on the contrary, asserted that the entire liability for the payment of the said rent was on the plaintiffs, and that the plaintiffs having defaulted in payment of rent, the decree had been validly passed against them. They also stated that the auction purchasers were not the farzidars of the mortgagees but independent purchasers in their own right and all the allegations of the plaintiffs to the contrary were false and unfounded. On these allegations they contended that the plaintiffs suit for redemption did not lie as the mortgage interest no longer subsisted, the holding having been sold in execution of the rent decree.

4. The Courts below have concurrently found after a careful consideration of the evidence on record that it had been" established that the lands in suit had been