JUDGMENT

Tek Chand, J. - The sole question for determination in this appeal is whether the suit of the appellant, Anjuman Imdadi Bank, zemindara of mauza Khapar Kheri, District Amritsar, against Ujagar Singh, defendant-respondent, for recovery of Rs. 1093 is barred by Section 47, Civil P.C. In order to appreciate the point it is necessary to state briefly the relevant facts. In 1928 the plaintiff Anjuman obtained a decree against one Bhagat Singh for Rs. 1098. In proceedings in execution of this decree, the Anjuman applied for a temporary alienation of the land of the judgment-debtor. The land was attached and a reference made to the Collector for suggesting the mode and terms of the temporary alienation. The proceedings were transferred by the Collector to the Tahsildar, before whom no suitable offer for mustajri was made, but Ujagar Singh respondent offered to take the land on mortgage undertaking to pay the decretal amount in full to the decree-holder, The Tahsildar con. sidered this offer to be in the interests of the judgment-debtor, and supported it in his report to the Collector. The Collector in turn made a recommendation to the executing Court to accept the mortgage. She executing Court accepted the recommendation and sanctioned the mortgage. Possession of the land was accordingly given to Ujagar Singh and mutation duly effected in his favour as mortgagee. Neither the executing Court nor the Collector however took any steps to realize the mortgage money from Ujagar Singh. Some months later, Ujagar Singh applied that fee did not want to pay the decretal amount and that the mutation be cancelled. The decree-holder raised no objection and the executing Court ordered the cancellation of the mutation. The judgment-debtor however had not been informed of these proceedings, and the order of cancellation had been passed behind his back. On coming to know of the order, he applied to the executing Court, objecting to the cancellation, and asking the Court to certify, under Order 21, Rule 2, Civil P.C. that the decree had been satisfied by a binding mortgage in favour of Ujagar Singh. Ujagar Singh contested the application, urging that the mortgage was not binding on him, he having originally agreed to take it under a mistake as to the extent of the area mortgaged. The executing Court after a lengthy inquiry into the contentions of the parties, held that a valid mortgage had been created in favour of Ujagar Singh, that he had entered into possession of the land as mortgagee and that he could not back cut of the transaction at that stage. It was accordingly held that the decree had been satisfied fully; the application of the judgment-debtor under Order 21, Rule 2, was granted and the execution proceedings consigned to the record room as "completely satisfied." Ujagar Singh's appeal to the District Judge and second appeal to this Court were both unsuccessful: see C.A. 8 of 1932, decided by Bhide J. on 26th May 1932.

2. In the meantime, Ujagar Singh had continued in possession of the land, and had appropriated the rents and profits without paying anything to the decree-holder Anjuman. In July 1935, the Anju-man brought a suit against him for recovery of Rs. 1750 alleged to be due on foot of the mortgage above mentioned. Ujagar Singh resisted the suit on numerous grounds pleading inter alia that it was not maintainable under Section 47, Civil P.C. The trial Judge upheld this preliminary plea and dismissed the suit. On appeal, the learned District Judge came to a contrary conclusion; he accepted the appeal and remanded the case under Order 41, Rule 23, Civil P.C. for decision on the merits. From his decree the defendant preferred a second appeal to this Court, which has been accepted by Skemp J. sitting in Single Bench and the suit dismissed as barred by Section 47. From this judgment the present appeal has been lodged under Clause 10 of the Letters Patent.

3. Before the learned Judge it was argued on behalf of the defendant-respondent