The central legal point established in the judgment is the interpretation of the mortgage as an encumbrance on the property and the applicability of legal provisions in determining property rights.

JUDGMENT

Ewart Greaves, J. - This is an appeal by the defendants Nos. 1 and 2 against a decision of the District Judge of Murshidabad reversing a decision of the Munsif of Kandi. The suit out of which the appeal arises was brought by the plaintiff to recover possession of certain property on declaration of his title thereto. The plaintiff's title was based on a purchase at a rent sale on the 21st May 1918. The defence of the defendants was that they had purchased the property on the 17th September 1913 in execution of a mortgage-decree in respect of which they were decree-holders and they alleged that as their mortgage had not been annulled u/s 167 of the Bengal Tenancy Act, the plaintiff could not recover his possession of the premises. The first Court dismissed the prayer for khas possession but declared that the plaintiff was entitled to get rent from the defendants in respect of the property. The second Court decreed the plaintiff's claim for kites possession holding that there was no encumbrance on the property.

2. Now it is urged before us that under the circumstances the mortgage is an encumbrance on the property and that consequently the decree of the lower Appellate Court giving khas possession is incorrect; and reliance is placed by the appellants on the decision in the case of Sukhi v. Ghulam Safdar Khan 65 Ind. Cas. 151 : 43 A. 469 : (1921) M.W.N. 445 : 14 L.W. 162 : 26 C.W.N. 279 : 42 M.L.J. 15 : 30 M.L.T. 175 : 24 Bom. L.R. 590 : AIR (1922) (P.C.) 11 : 48 I. A. 465 (P.C.) and on a decision of this Court in the case of Sital Chandra Majhi v. Parbati Charan Chakrabarti 69 Ind. Cas. 841 : 35 C.L.J. 1 : AIR (1922) (C.)32. The respondent, on the other hand, relied on the decision in the case of Bhawani Kumar v. Mathura Prasad Singh 16 Ind. Cas. 210 : 40 C. 89 : 16 C.W.N. 985 : 23 M.L.J. 311 : 12 M.L.T. 352 : (1912) M.W.N. 244 : 14 Bom. L.R. 1046 : 16 C.L.J. 606 : 39 I. A. 228 (P.C.) (a decision of the Judicial Committee) and also on a decision of this Court in the case of Sabjan Mandal v. Haripada Saha 66 Ind. Cas. 103 : 25 C.W.N. 424. The appellants distinguished the case in Bhawani Kumar v. Mathura Prasad Singh 16 Ind. Cas. 210 : 40 C. 89 : 16 C.W.N. 985 : 23 M.L.J. 311 : 12 M.L.T. 352 : (1912) M.W.N. 244 : 14 Bom. L.R. 1046 : 16 C.L.J. 606 : 39 I.A. 228(P.C.) on the ground that that was decided whilst the provisions of Section 89 of the Transfer of Property Act were still in force. The concluding words of that section are that upon the happening of the events therein set out the defendants' right to redeem and the security shall both be extinguished and the appellants say that by reason of the repeal of that section and the omission of the concluding words of Section 89 in the provisions of Order XXXIV, Rule 5 of the C.P.C. which had re-placed Section 89 of the Transfer of Property Act, the decision in Bhawani Kumar v. Mathura Prasad Singh 16 Ind. Cas. 210 : 40 C. 89 : 16 C.W.N. 985 : 23 M.L.J. 311 : 12 M.L.T. 352 : (1912) M.W.N. 244 : 14 Bom. L.R. 1046 : 16 C.L.J. 606 : 39 I. A. 228 (P.C.) cannot be relied on. It is necessary, therefore, to examine these cases in order to see if the contention of the appellants is correct. In Bhawani Kumar v. Mathura Parsad Singh 16 Ind. Cas. 210 : 40 C. 89 : 16 C.W.N. 985 : 23 M.L.J. 311 : 12 M.L.T. 352 : (1912) M.W.N. 244 : 14 Bom. L.R. 1046 : 16 C.L.J. 606 : 39 I.A. 228 (P.C.), the mortgagee had obtained a decree on a mortgage-bond on the 31st May 1899, which decree was made absolute on the 19th December 1899. The decree was executed by the mortgagee on the 19th March 1900 and he himself purchased the property, the sale having been confirmed on the 23rd April 1900. Meantime on the 29th March 1910, there was default in payment of Government revenue and on the 6th of June 1910,' the whole share was sold and purchased in the name of the second defendant in the suit by the third defendant. A sale certificate was obtained on the 3rd July 1901 and possession was delivered on the 5th Ju