JUDGMENT

Allsop, J. - This appeal arises out of a suit for the recovery of arrears of rent from certain thekadars. The defendants executed a deed of usufructuary mortgage in favour of the plaintiff and then took a theka from him. The defendants thereafter made an application u/s 4, Encumbered Estates Act. A money decree was passed in favour of the plaintiff on 28th August 1939, on the basis of the mortgage. The defendants did not get formal possession till 18th December 1940, but they were of course in actual occupation of the property as the result of the theka in their favour. The plaintiff then instituted the suit which has given rise to this appeal to recover rent from the defendants for the period from 28th August 1939 to 18th December 1940. The learned Assistant Collector dismissed the suit, but the learned Additional District Judge in appeal set aside his decision and passed a decree in favour of the plaintiff.

2. In this second appeal it is urged that the plaintiff had no proprietary interest in the property on the basis of the mortgage after 28th August 1939, and we think that this contention is right. u/s 18, Encumbered Estates Act-, the effect of the decree of a Special Ju