The judgment established the principle that a mortgagee's claim for possession may be barred by limitation if the mortgagee was never in possession of the property since the purchase in execution of the mortgage decree.

JUDGMENT

Walmsley, J. - The plaintiffs are the appellants. Their suit was for establishment of their title as against; defendants Sob. 6 to 11, and for recovery of khas posses-ion as against the tenant-defendants Nos. 1 to 5, They lost in the First Court, and on appeal they succeeded in part, they now prefer this appeal in regard to the part of their; claim that has been disallowed.

2. The property in suit is two-thirds of a plot measuring 10 bighas 16 kattas. This portion was bought by one Syama Charan Mokerjee in 1273 B. S, he died leaving two sons, Akhoy and Abhoy. They together mortgaged it to Jiban Krishna Boy, father of plaintiffs Nos, 1,2 and 3, and of defendant No. 12, and grandfather of plaintiffs Nos. 4 and 5, The mortgage was dated; 1297. Jiban got a degree on the mortgage, in 1896, and bought the mortgaged property in execution on January l2, 1897.

3. Meanwhile Abinas, the predecessor of defendants Nos. 8 to 11, had obtained a decree against Abhoy alone, and bought the interest of Abhoy in an execution sale on June 9, 1894. At that time the tenants tinder Akhoy and Abhoy, namely, Chaitanya, defendant No. 1, Sridhar, defendant No. 5, and Krishna, the father of defendants Nos. 2, 3 and 4, were in occupation of the land. Abinas took a kabutiyat from Krishna and Sridhar. Although Abinas had bought Abhoy's interest before Jiban brought his suit, he was not made a party to that suit.

4. Akhoy also dealt with his share, but after the institution of the suit by Jiban : be sold it on Falgun 2 and 3, 1304, by separate kobalas to Ishan, predecessor of defendant No. 6, and Ham Chandra defendant No. 7. On Aghrayan 28, 1306, Chaitanya and Sridhar executed a kabuliyat in favour of Ishan and Hem Chandra.

5. The case for the plaintiffs is that Jiban obtained possession of the property after hit purchase at the auction sale, and that he received rent from the tenants amicably and by suit; but when be brought a suit in 1913 (No. 885 of 1913) for recovery of the rents of 1317 to 1320 the tenants denied that he was their landlord, and in consequence the plaintiffs assert that the tenant-defendants have forfeited their right to remain as tenants of the land.

6. The claim of the plaintiffs is, therefore, two fold, for a declaration of their title as against defendants Nos. 6 to 11, and for khas possession as against the tenant defendants Nos, 1 to 5.

7. The decree which they have obtained is in respect of Akhoy'a half but it does not give them khas possession. The objects of the appeal, therefore, are, firstly, a declaration of title in regard to Abhoy's share against the successors of Abinas and, secondly, recovery of khas possession as against tenant-defendants in regard to the whole area.

8. I will deal first with the claim to title as regards Abhoy's share. The first, argument on this subject is that, granting that Abinas was not bound by Jiban's mortgage-decree, the right which he held was no more than it would have been if ha had 'been made a party, that is to say, he had a right to redeem and he and his successor cannot retain possession without redeeming the plaintiff's mortgage. Reliance is platted on two Bombay Decisions Mohan Manor v. Togu Uka 10 B. 224 : 5 Ind. Dec. 536 and Dadoba Arjunji v. Damodar Raghunath 16 B. 486 : 8 Ind. Dec. 803. In the first case the lower Court held that as plaintiff would not satisfy the defendant's mortgage, the suit must be dismissed. The High Court held that it was not for the plaintiff to satisfy the defendant, but for the defendant to have an opportunity of satisfying the plaintiff, and so plaintiff was given a conditional decree. la the second case a conditional degree was granted by the lower Court and when the plaintiff appealed, the High Court said that the defendant was clearly entitled to an opportunity of redemption, and then proceeded to examine the terms. The question under consideration, therefore, was different from the one before us, and it is not necessary to examine the decision further,