JUDGMENT :- The plaintiffs are in Second Appeal against a confirming judgment of the learned Additional District Judge of Cuttack in a suit for foreclosure.

2. The plaintiffs claim that the defendants borrowed Rs. 500/- from their father who is now dead by executing a usufructuary mortgage bond (Ext. 1) on 3-7-1950, but the defendants actually did not put the mortgagee in possession. The plaintiffs filed T. M. S. No. 60 of 1959, but that suit was dismissed as being premature. Title Appeal No. 34 of 1961 carried against the decree of dismissal also did not bring any fruits. As the period stipulated under the mortgage has now expired, the suit for foreclosure has been filed because the defendants have failed to make any payment.

3. The defendants stated that the suit was barred by res judicata on account of the fact that in the previous suit there had been a determination that the plaintiffs had obtained possession of the property. They contended that the plaintiffs had appropriated much in excess of their dues and as such the defendants were entitled to discharge of the mortgage under the provisions of Section 17 of the Orissa Money Lenders Act. They were also entitled to the excess m