The deposit under Section 13 of Regulation VIII of 1819 did not create a salvage lien or first charge, and the mortgagee in possession was entitled to apply the net income of the property in a manner agreed upon with the mortgagor, provided the security of prior mortgagees was not imperilled.

JUDGMENT

Lodge, J. - This is an appeal against the judgment and decree of the Subordinate Judge, Nadia, in a suit on a mortgage.

2. The material facts are not in dispute. On September 18, 1916, Maharaja Kshounish Chandra Ray Bahadur and Satyendra Narayan Bagchi, executors to the estate of Saratmani Debi, deceased, executed a mortgage-deed in respect of the patni taluk, lot Plassey, in consideration of a loan of Rs. 25,000, which was to carry interest at the rate of 12 annas per cent, per month until realisation. Under this patni taluk were a number of subordinate tenures, two of which were darpatnis held by the Midnapur Zamindari Company.

3. In 1927, the executors to the estate of the late Saratmani Debi made over the estate to Deb Nandan Mukherji, who was in control of the estate until August 8, 1930, when he executed a deed of trust in favour of Srimati Maya Debi. Deb Nandan borrowed Rs. 60,000 from Surpat Singh, Mahipat Singh and Bhupat Singh on June 27, 1928 and mortgaged the same properties for the second time. Again, on October 8, 1929, Deb Nandan borrowed Rs. 30,000 from Bipinbihari Laha and executed a third mortgage in respect of the same properties. Thereafter in 1930, Deb Nandan defaulted in payment of rent to the superior zemindar and the taluk was advertised for sale under the provisions of Regulation VIII of 1819. The Midnapur Zamindari Company, being talukdars of the second degree in respect of their two dar-taluks, paid into Court the amount declared due, viz., Rs. 22,974 odd and stayed the final sale. The Midnapur Zamindari Company applied to be put in possession of the taluk under the provisions of Section 13(fourth) of Regulation VIII of 1819 and possession was given to them by the Collector on November 26, 1930. The Midnapur Zamindari Company" remained in possession of the taluk from that date until after the institution of the present suit.

4. After taking possession of the property, the Midnapur Zamindari Company addressed letters to Srimati Maya Debi, asking for instructions in case the receipts from the taluk should be found insufficient to pay the head rent to the superior zemindar. Answers to the letters were received, though these answers were not signed by Srimati Maya Debi herself and these answers authorised the Midnapur Zamindari Company to advance the money necessary to pay the head rents and to charge 12 per cent interest on the advances. In one such letter, which was signed by Deb Nandan, the Midnapur Zamindari Company were requested to buy in auction sale, other darpatnis held under the taluk, in respect of which decrees for arrears of rent had been obtained. Accordingly, it is the case of the Midnapur Zamindari Company, the company in those years in which the realisations were insufficient to pay the head rents advanced the amount necessary for this purpose; and also, on occasions spent money from the receipts in purchasing other darpatnis held under the patni taluk, when the said darpatnis were put to sale in execution of decrees for arrears of rent.

5. In these circumstances, the suit, out of which this appeal arises, was instituted by the first mortgagee, Saradindu Mukherji.

6. Deb Nandan, successor of the mortgagors, was made Defendant No. 1; the second mortgagees were made Defendants Nos. 2, 3 and 4; the third mortgagee was made Defendant No. 5; Srimati Maya Debi was made Defendant No. 7; and the Midnapur Zamindari Company was made Defendant No. 8. Defendant No. 6 was a fourth mortgagee who compromised with the Plaintiff and does not concern us further.

7. The Plaintiff alleged in para. 7 of the plaint that the amount due to the Midnapur Zamindari Company had been satisfied out of the usufruct.

8. Written statements were filed by Defendant No. 1, by Defendants Nos. 2 to 4 and by Defendant No. 8.

9. Defendant No. 8, in his written statement, asserted that his original deposit had not been satisfied from the income of the estate; that, on the contrary, he had advanced further sums to pay the head r