JUDGMENT :- This is an application in revision by the defendants mortgagees arising out of a claim brought under S.12, U.P. Agriculturists Relief Act. The mortgage sought to be redeemed was a possessory mortgage and was executed on 28-5-1909 by one Sm. Daulata Kunwar in favour of two persons, viz. Gaya Rai and Prayag Dube. Padam Nath, the predecessor-in-interest of the present applicants, acquired the mortgagee rights by pre-emption and took possession of the mortgaged property as a usufructuary mortgagee. Later on, Sm. Daulata Kunwar executed a lease of the mortgaged property in favour of two persons, viz., Jagarnath Singh and Sri Bahadur Singh. The lessees brought a suit No.231 of 1922 for redemption of the mortgage. Shrimati Daulata Kunwar was arrayed as a defendant to that suit. The predecessors of the present applicants were the main defendants to that suit. On 27-9-1923 the suit was decreed. A preliminary decree was prepared under O.34, R.7 directing the then plaintiffs to pay a sum of Rs.1700/- till 27-3-1924. It was also stated in the decree that, in case the payment was not made within the aforesaid time, the right of redemption would be extinguished. No payment whatsoever was made. The present claim for redemption under S.12, U.P. Agriculturists Relief Act was brought in 1949 by three persons, viz. Shrimati Daulata Kunwar and the aforesaid two lessees. Various pleas were taken in defence. But the only one which is material for the purposes of the present revision was that the decision in Suit No.231 of 1922 operated as res judicata and the right to redeem had been extinguished.

2. Both the Courts below have taken the view that the lessees right to redeem has been extinguished by reason of the aforesaid decision and that that decision operates as res judicata. They are, further, of the opinion that Sm. Daulata Kunwars right is not so extinguished. The claim for redemption has therefore been decreed in favour of Sm. Daulata Kunwar only.

3. The point urged by the learned counsel for the applicants is that not only the lessees right but also the right of Sm. Daulata Kunwar has been extinguished as a result of that decision. It is argued that that decision operates as res judicata against the lessees and also against Sm. Daulata Kunwar as res judicata between co-defendants.

4. The decree that was prepared in Suit No.231 of 1922 was not in accordance with law. In accordance with O.34, R.7, as it stood before the amendment of 1929, the decree should have said that in the event of non-payment the mortgaged property would be sold. Foreclosure was not a penalty which, under the law as it then stood, could be imposed on the defaulting mortgagor. After the aforesaid amendment the Court can neither order sale nor foreclosure when a mortgagor under a usufructuary mortgage fails to make a deposit within the time allowed by law. But the present case is to be decided according to law as it stood prior to the said amendment. Under that law the penalty to be imposed on the defaulting mortgagor was, as already stated, that the mortgaged property should be sold. But that was not mentioned in the decree and a penalty of a wrong nature, not warranted by law, viz., that the right to redeem would be foreclosed, was mentioned in the decree. It is argued by the learned counsel for the applicants that since the Court, rightly or wrongly, imposed that penalty and since the decree was not appealed against, the right to redeem has been extinguished. With this contention I am unable to agree. Even in cases where the penalty of foreclosure is rightly imposed, e.g. in the case of mortgages by conditional sale, it is not the preliminary decree itself which extinguishes the right of redemption finally. Even under the law as it stood prior to the amendment, a final decree had to be passed under O.34, R.8, before the right to redeem could be lost. The preliminary decree simply indicated what consequences would follow in the event of non-payment of the mortg

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