JUDGMENT

1. The plaintiff, respondent, is the auction-purchaser of the ten biswas zamindari share of Zalim Singh, the subject of dispute. He avers that the share was mortgaged on the 17th June 1859 to the defendants for Rs. 2,200, and for a term of five years, and that on the 21st May 1861, Zalim Singh executed a deed of sale of the property in favour of the mortgagees, giving them credit for Rs. 2,200, the mortgage-money, Rs. 250 in cash, and retaining Rs. 5,800 to be paid on account of debts to the plaintiff: Lalta Prasad and others sons of Zalim Singh, sued to set aside the sale and succeeded in Saining a final decree in their favour from the Sudder Dewany Adawlat, North-Western Provinces, on the 22nd August 1864: the defendants, however, continued in possession of the share as mortgagees: there was a stipulation in the mortgage-deed that Zalim Singh was to receive Rs. 75 yearly as "malikana" or proprietary allowance: this sum the mortgagees deducted yearly from he principal sum advanced on the mortgage, leaving now a balance of Rs. 925 due to the mortgagees:the plaintiff claims to redeem the share of Zalim Singh on payment; of Rs. 925, or such sum as the Court shall declare to be due. The defendants contend that the purchase of the interest of the sons of Zalim Singh by the plaintiff at auction gave him no right of suit: they had no right during their father's lifetime: Zalim Singh had admitted the sale to defendants and he had ineffectually endeavoured to recover possession of the share, but the High Court, North-Western Provinces, on the 27th May 1867 rejected his claim: the plaintiff's suit to redeem the mortgage on the ground that the sale of the 21st May 1861 was invalid was barred by Section 13, Act X of 1877 and the admission of Zalim Singh. They also contend that they were entitled to repayment of the sale consideration and that the allowance of Rs. 75 ceased from the date of the sale, and that there was no condition in the mortgage-deed for the deduction of this sum yearly from the principal sum advanced on mortgage Zalim Singh himself realized this sum prior to the sale. The Subordinate Judge held that the defendants, who objected to the sale of the share in execution of the decree and against whose objection an order was passed on the 15th November 1867, ought to have contested that order in a regular suit within the period prescribed by law : they had not done so, and the order became final, and they could not now contend that Zalim Singh had no rights that could be sold: the plaintiff, therefore, had a clear right of suit. He also held that the property in dispute could not be considered liable for the consideration of the sale-deed, that deed having been set aside by the Sudder Dewany Adawlat in 1864: the defendants themselves have admitted all along that they were mortgagees: as they had failed to show that the proprietary allowance of Rs. 75 had been paid yearly, the sum should be deducted from the amount of the mortgage-loan. He accordingly gave a decree to plaintiff as claimed The defendants appealed and repeat their original pleas. The Judge held that the mortgage of 1859, which had merged in the sale of 1861, revived when that sale was cancelled under the decision of the Sudder Dewany Adawlat of 1864: the sale was set aside because it was invalid under the Hindu law. He accepts the argument of the Subordinate Judge in regard to the finality of the order u/s 24.6, Act VIII of 1859, and he further holds that defendants were not entitled to any refund of Rs. 8,000, as sale-consideration, before redemption could be allowed: if they are entitled to that sum they could only claim it from Zalim Singh personally: they could not claim it from the plaintiff who had purchased the equity of redemption the defendants had never brought a suit for the recovery of the money. The Judge also allowed the deduction of Rs. 75 yearly from the mortgage-loan as there was no proof that the allowance had been paid.

2. In second ap