The equity of redemption is extinguished when the mortgaged land is sold in execution of a rent decree and purchased by the landlord in the absence of fraud or collusion.

1. This appeal is brought on behalf of the plaintiffs against a judgment of the Additional Subordinate Judge of Saran, dated 13th February, 1950, dismissing a suit for redemption. It appears that on 18th October, 1928, defendant No. 6 as guardian of Shib Narain, father of the plain-tiffs, executed a zarpeshgi deed in favour of defendant No. 1 with regard to 6 kathas 14 dhurs of land. Under the terms of the zarpeshgi bond the mortgagee was liable to pay the rent to the landlord. On 21st July, 1933, defendant No. 1 assigned his zarpeshgi interest in 4 kathas 18 dhurs out of the zarpeshgi land to defendant No. 5. It appears that the landlord brought a suit for arrears of rent against defendant No. 6 in 1932 and obtained a decree. In execution of that decree the landlord purchased the land in question on 18th September, 1933. It is also alleged that the landlord obtained delivery of possession in 1934. Four years later, that is, on 22nd August, 1938, defendant No. 1 obtained settlement from the land- lord of the land previously in zarpeshgi. The trial court held that the right of redemption was not extinguished by the execution sale and, therefore, granted the plaintiffs a decree for redemption of the usufructuary mortgage. On appeal the lower appellate court has held that by purchase of the land by the decree-holder in the execution case the mortgage came to an end and the right of redemption was extinguished. The lower appellate court, therefore, allowed the appeal and ordered that the suit should be dismissed.

2. The question involved in this second appeal is whether the right of redemption was extinguished when the execution sale took place and the landlord purchased the mortgaged land in the execution proceedings. It is important to say that both the courts below have, found that there was no fraud on the part of the mortgagees and there was no collusion between the landlord and the mortgagees and that the default of payment of rent on the part of the mortgagees was not a contrivance on their part to get rid of the equity of redemption or to obtain as advantage for themselves. The question arises whether in these circumstances the equity of redemption has been extinguished as a matter of law. On behalf of the plaintiff-appellants reference was made to two decisions of this Court, Deo Saran Singh V/s. Barhu Singh AIR 1952 Pat 286 (A) and Ram Rup Singh V/s. Jang Bahadur Singh AIR 1951 Pat 566 (B). Reference was also made on behalf of the appellants to a decision of the Supreme Court in Sidhakamal Nayan Ramanuj Das V/s. Bira Naik. AIR 1954 SC 336 (C).

In our opinion all these cases are clearly distinguishable. In AIR 1952 Pat 286 (A) there was a default of payment of rent by the mortgagee and the purchase in the execution proceeding was made by the mortgagee himself. Similarly in AIR 1954 SC 336 (C) the purchase was made by the mortgagee in possession & therefore it was held that the provisions of section 90 of the Trusts Act applied and that the equity of redemption was not extinguished and the mortgagee held the land as a trustee for the mortgagor, In the third case, AIR 1951 Pat 568 (B) there was a purchase of the mortgaged land by the landlord in the execution proceedings, but the distinguishing feature is that in that case there was a a finding that the mortgagee was guilty of fraud & collusion in making default in payment of rent decree and taking fresh settlement of the holding. It was held in these circumstances that the mortgagee was clearly in the wrong in allowing the property to be sold in execution of the rent decree, and by taking settlement from the landlord he could not take advantage of his own wrong and change the character of his possession and deprive the mortgagor of his right of redemption: It is manifest that the material facts of the present case are wholly different and there is no finding that there was any fraud or collusion between the mortgagee and the landlord. We are, clearly, of the opinio