JUDGMENT

1. This is an appeal from the decree, dated the 10th August 1923, of the Subordinate Judge of Fyzabad. The defendants to the suit, out of which this appeal arises, are the appellants. The plaintiff-respondent has also filed cross-objections in respect of the same decree.

2. A 12 annas 1⅓ pies share in mauza Nasrullahpur and the entire village Hashimpur, situate in pargana Tanda, district Fyzabad, are owned by the defendants. Their predecessors made several mortgages in respect of these villages in favour of the plaintiff's predecessor-in-interest. All these mortgages were effected prior to the year 1917. The majority of them were mortgages simple in character and the rest were possessory mortgages. Under the mortgages of the latter description the mortgagee entered into possession of the villages mentioned above and has admittedly been in possession all along.

3. On the 30th May 1917, the defendants executed a mortgage in respect of the same property in favour of one Balram Das. This mortgage was a simple mortgage and was made in consideration of a loan of Rs. 20,000. The ostensible object of this mortgage was to raise money to satisfy the mortgages, presumably simple, standing in favour of the plaintiff's predecessor-in-interest (Exh. 15). It is admitted that this object recited in the deed of mortgage was not fulfilled. On the 7th January 1918, Balram Das instituted a suit against the defendants for the realization of the mortgage-money due to him under the deed of the 30th May 1917. The relief he asked for was the sale of the villages in question (Exh. 16). To this suit the plaintiff or his predecessor-in-interest was not made a party. The suit ended in a compromise between the parties (Exh, A-1) and a preliminary decree for sale was passed on the 8th April 1918, (Exh. A-2). The decree was made absolute on the 1st March 1919 (Exh. A-3). In pursuance of the last mentioned decree proceedings were taken by Balram Das for the sale of the property mentioned above. The property being ancestral, the sale was conducted by the Collector of the district. Finally, the villages were sold by public auction on the 20th August 1920 and purchased by one Abdul Wajid for a sum of Rs. 60,000 (Exh. A6). On the 13th September 1920 the plaintiff's predecesso-in-interest, Thakur Ram Sahu, deposited in the Court of the Sale Officer the sum of Rs. 29,246|6. This sum represented the amount of Balaram Das's decree, Rs. 26,122|6 for payment to the decree-holder and 5 per cent, of the purchase-money, Rs. 3,000 for payment to the purchaser and a further sum of Rs. 124 for the auction-sale charges (Exh. 11). Along with this deposit he presented an application to the Sale Officer, asking for an order setting aside the sale in terms of Order 21, Rule 89, of the Code of Civil Procedure. In this application Thakur Ram Sahu stated that he had been in possession of the property for about 27 years under a usufructuary mortgage and held several other mortgages in respect of the same. It was further stated that the sale proclamation omitted to mention the fact of the applicant's possession (Exh. 21). The Sale Officer accepted the deposit and directed notices to issue both to the judgment-debtors and the auction-purchaser (Exh. 19). On the 9th October 1920, protests were lodged by the judgment-debtors and also by Abdul Wajid, the purchaser, by separate applications (Exhs. A9 and A10). The judgment-debtors said that Thakur Ram Sahu had no right to make the deposit under Order 21, Rule 89, of the Code of Civil Procedure and that the sale be confirmed. The purchaser, Abdul Wajid, stated that according to the allegation of Thakur Ram Sahu himself the latter's possession had been under a usufructuary mortgage for a long time and that in the circumstances the former had purchased only the right of redemption. He asked that Thakur Ram Sahu's application under Order 21, Rule 89, of the Code of Civil Procedure be dismissed. On the 13th October 1920, the Sale Office