A lease not given in the ordinary course of management and with notice of the mortgage renders the leased field liable under the mortgage decree.

Findlay, J C—In the present mortgage suit, the facts of which are sufficiently clear from the lower Court's judgment, the present appellant, who was defendant 4 in the lower Court, was impleaded in view of the fact that he had obtained a perpetual lease of khudkasht field No. 47 of mauza Jolwadi from defendants 1 to 3 and 7. The connected 2 annas 8 pies share of mawza Jolwadi has been released under the decree passed by the lower Court on the ground that at the time the mortgage came into being, the said share was unier the management of the Collector. The Subordinate Judge, 1st Class, for reasons which are sufficiently clear from his judgment, has, however, held that the khudkasht field No.47, which was the subject of the present appellant's lease, was liable under the mortgage and it has accordingly been included in the mortgage decree. I am, therefore, solely concerned in this appeal with the question as to whether the inclusion of this field is correct or not.

2. In this connexion, I have been referred by the pleader for the appellant to para. 6 of the plaintiffs' written statement, dated 10th July 1925. It has been suggested that therein the plaintiffs rested their case on the fact that the 2 annas 8 pies share of mauza Jolwadi mortgaged was not the same 2 annas 8 pies share as was under the control of the Collector at the time being. It is perfectly clear that the plaintiffs' first plea in this connexion was that the mortgagors had a 5 annas 4 pies share in each of the two villages Jolwadi and Bhojgadh and that it was the, 2 annas 8 pies share which was unaffected by the Collector's control and which was mortgaged. The lower Court, in its finding on issue 8, has, however, found this point against the plaintiff and there has clearly been no proof that the mortgagors had more than 2 annas 8 pies share in mauza Jolwadi.

3. It has now been suggested on behalf of the present defendant-appellant, apparently for the first time, thai the khudkasht fields Nos. 47, 17 and 9 with a total acreage of 9.14 acres must be the same as the khudkasht fields Nos. 10 and 52 with a total acreage of 9.15 acres, which the lower Court holds were under the management of the Collector along with a 2 annas 8 pies share of mouza Jolwadi. J. do not think, however, this contention can possibly be now accepted, offered as it is for the first time in the appellate Court. If we turn to para. 6 of the plaintiffs' written statement, it is perfectly clear that there the latter offered an alternative plea. Even supposing that the contention that the mortgagors owned a 5 annas 4 pies share in the village and that it was the free portion of that share which was mortgaged failed, the plaintiffs clearly offered a further distinct plea that anyhow the rest of the property covered by the mortgage was not included in the Collector's proceedings and that the mortgage would hold good as regards such further property. Now, if the present defendants-appellant's case had been that Nos. 10 and 52 in reality, referred to the same lands as Nos. 47, 17 and 9, I should certainly have expected to find a specific plea from him to this effect in his written statement, dated 24th September 1925. The said written statement is, however, absolutely silent on the point and he therein rested his case on the fact that the lease of field No. 47 had been given I him in the ordinary course of management and that, in any event, the mortgage having been executed when the Collector's proceedings were pending, the whole of it was void irrespective of the 3 fact whether the subjects covered by the mortgage were all at the time in the hands of the Collector. On this latter 3 point, I see no reason to differ from the 3 decision of Kotval, A.J.C., in Gangaram v. Ramgopal,1922 AIR(Nag) 1922, the incompetency of the 3 mortgage only extended to the property of which the Collector had expressly s assumed management.

4. It has next been urged in this connexion on behalf of the appellant that a w