JUDGMENT

B. Dayal, J. - These are two connected second appeals arising out of two rival suits for redemption of the same property. It appears that one Ram Prasad was the original owner of this property who usufructuarily mortgaged it in favour of Khaderu and Sukkhan in 1904. This mortgage was usufructuary mortgage and the interest of the mortgagee was transferred from time to time and now vested in Thakur Prasad. The equity of redemption also changed hands. Ram Prasad the original mortgagor had two daughters Sampta and Lakhpatta. These daughters transferred their interest in favour of Smt, Krishna and Shiva Nath. Upon this transfer, one Bansi Lal, who is now represented by his transferees Lachman Prasad and Mohan Lal filed a suit for pre-emption which was suit No. 441 of 1941. The suit was dismissed by the trial court, but was decreed by the lower Appellate Court on 22-9-1943. Smt. Krishna and Shiva Nath filed a second appeal against that decree. In the meanwhile, Banshi Lal deposited the preemption money and in execution of that decree obtained formal possession of the house on 16-11-1943. In second appeal, however, his decree for preemption was modified, and it was held that the pre-emptor Banshi Lal was entitled to only a portion of the house which was lying in one Mohalla in which the custom of preemption prevailed, but he was not entitled to pre-empt the house to the extent of the other portion which existed in another Mohalla. After obtaining this decree from the second appellate court, Smt. Krishna and Shiva Nath did not take a similar step of applying under Sec. 144 and taking formal possession of that portion of the house over which the pre-emptor was declared not to have any right to pre-empt. Thereafter, Banshi Lal made a gift of his rights on the 9th May, 1952 in favour of Lachman Prasad and Mohan Lal and they filed a suit No. 439 of 1952 for redemption of the entire mortgaged house and to this suit, they not only made Ram Khilawan and Thakur Prasad parties as representing the mortgagees but they also made Smt. Krishna and Shiva Nath defendants in the suit. During the pendency of the suit Smt, Krishna and Shiva Nath transferred their interest in favour of Bhagwati Prasad who was also made a defendant thereafter. In the same way Bhagwati Prasad also filed a suit No. 870 of 1952 for redemption of the whole house, and in this suit also, not only the representatives of the mortgagees were impleaded but also Lachman Prasad and Mohan Lal as representing the interest of the pre-emptors. Thus, before the trial court, there were two suits, one by the pre-emptors and the other by the mortgagors to redeem the whole house, and since all the parties were joint in both the suits, there was no difficulty in adjusting the equities between them.

2. The trial court as well as the lower appellate court dismissed the suit of Bhagwati Prasad and decreed that of Lachman Prasad and Mohan Lal. Second Appeal No. 1525 of 1957 has been filed by Bhagwati Prasad against the dismissal of his suit No. 870 of 1952, while second appeal No. 1427 of 1957 has been filed by Bhagwati Prasad against the decree passed in the suit of Lachman Prasad and Mohan Lal No. 439 of 1952.

3. The only ground on the basis of which both the courts below decreed the suit of the pre-emptors in full and dismissed that of the mortgagors was that after the preemption decree for the whole house which had been passed by the first appellate Court in the preemption suit, the pre-emptor had taken formal possession of the house in execution of the decree. When, in second appeal that decree had been modified, the mortgagors did not apply under Sec. 144, C. P. C. to take back possession of that portion of the house for which the pre-emption suit had been dismissed by the second appellate court. It was held by the courts below that by not taking possession under Sec. 144 of the Code of C. P. within the limitation prescribed under Article 181 of the Limitation Act, the mortgagors los