JUDGMENT

Boys, J. - This is a plaintiff's appeal. It was a suit for a declaration of title that the plaintiff was mortgagee in possession of Plot No. 118 and that he was not a tenant of the defendants, and he also prayed for redemption of two simple mortgages. It appears that the original owners were Dharam Dut and Aman Dut whose heirs were Defendants Nos. 10 to 16. A simple mortgage was executed by Dharam Dut and Aman Dut in February 1876, in favour of one Debi Dayal whose heirs were represented by Defendants Nog. 1 to 8. A second mortgage, similar in all respects, was executed on the 28th of September 1876. Finally Dharam Dut and Aman Dut executed in favour of one Pabaru Sunar a usufructuary mortgage on the 22nd of May 1879. The grandson of Pabaru Sunar, Ram Nath, who was really a pro forma defendant 3rd party, sold his rights, on the 7th of August 1909, to Ram Baran Chaube and Hazari Chaube, the present plaintiffs, and got possession. On the 17th of April 1888, the heirs of Debi Dayal, the prior mortgagees, obtained a decree in respect of their two simple mortgages, but did not in their suit make the usufructuary mortgagee, the predecessor of the plaintiffs' party. Having obtained a decree for sale the heirs of Debi Dayal, whom we shall henceforward call the defendants, themselves, purchased the mortgaged property. In 1921 they sued in the revenue Court to eject the present plaintiff describing him as a tenant, and on the 4th of March 1921, the plaintiff objected that ho was really a mortgagee and ho was referred by the revenue Court to the civil Courts. He duly went to the civil Court and the present proceeding is the result. The defendants pleaded that they not in their capacity as prior mortgagees but by right of their purchase of the equity of redemption at the auction sale were entitled to redeem the plaintiff. They pleaded that they had obtained decrees which extinguished their own mortgages and therefore no suit by the plaintiff for redemption was possible.

3. The trial Court, the Munsif (B. Grish Chander), on the 16th of February 1922, - granted a preliminary decree for redemption to the plaintiff on the basis that all accounts should be taken as to what was due to the defendants on their mortgages at the date of the auction purchase. Subsequent to the passing of this preliminary decree B. Grish Chander was transferred to another Court to act as Subordinate Judge in the same district. On the 16th of February 1922 he had written the judgment in the case, but his successor, B. Raghunath Prasad, on the same day, the 16th of February 1922, pronounced it. The next step was an application by the plaintiff, on the 18th of February 1922, to the Court of the Subordinate Judge, which was then presided over by B. Grish Chander, to amend his judgment, so that the decree should read that account should be taken up to the date of the decree obtained by the defendants in accordance with the Privy Council ruling to that effect. It would appear that on the 4th of March 1922 the defendants appeal from the original preliminary decree to the Court of the District Judge. On the same day B. Grish Chander allowed the application for review and passed a fresh decree. It is clear that though these two proceedings took place on the same date the appeal of the defendants was in fact filed before the order allowing the review was passed; for there is a reference to it in the order granting the review. On the 22nd April 1922 the defendants also appealed against the order allowing the amendment. The two appeals were heard together by the District Judge. He dismissed the plaintiff's suit for redemption, holding that the defendants' mortgages had ceased to exist as a consequence of the decrees obtained by them, and he held that the defendants were entitled to redeem the plaintiff. The plaintiff, at the hearing of the appeal, objected unsuccessfully that the appeal should have been against the preliminary decree as passed by the Subordinate Judge B.