JUDGMENT

1. This is an appeal from an order of the District Judge of Hardoi dated 20th March 1931 setting aside an order of Munsif, Hardoi South dated 31st October 1930. The facts relevant to this appeal may be shortly stated. One Jit Singh executed uusufructuary mortgage for Bs. 200 in favour of one Jotai Singh in respect of certain zamin-dari shares in village Dhaurahra in the District of Hardoi on 2nd December 1902. No period was fixed for redemption of the mortgage. Jotai Singh subsequently assigned his mortgagee rights to Pt. Raghubar Dayal (appellant).

2. It appears that Pt. Raghubar Died after the appeal was filed in this Court and his legal representatives were then brought on the record. On 10th January 1903, Jit Singh executed a usufructuary mortgage in favour of Pt. Raghubar Dayal in respect of half of the property comprised in the mortgage of 2nd December 1902. This mortgage was, executed for Rs. 450. The mortgagee was to remain in possession of the property and appropriate the profits in lieu of interest on Rs. 200 out of Rs. 450. The remaining Rs. 250 was to carry interest at the rate of Rs. 2 per cent per mensem. The period fixed by this mortgage was ten years.

3. Jit Singh executed two deeds of further charge also in favour of Pt. Raghu-bar Dayal, one dated 17th November 1903 for Rs. 100 bearing interest at Re. 1-8-0 per cent per mensem and the other dated 27th February 1904 for Rs. 150 bearing interest at the same rate. These deeds were deeds of further charge in connection with the first mortgage of 2nd December 1902. On 3rd July 1904 Khuman Singh, son of Jit Singh deceased, sued for redemption of the entire mortgaged property without making any mention of the deeds of further charge mentioned above. Pt. Eaghubar Dayal set up his deeds of further charge. It was held by the Court that the mortgagor could not redeem the property without payment of the amount due on the deeds of further charge. The preliminary decree for redemption was passed on 17th January 1925 and the final decree on 24th October 1925.

4. Khuman Singh having failed to pay off the decretal amount, the mortgaged property was sold under the final decree on 28th November 1929. The net proceeds of the sale were found insufficient to pay the amount due to the mortgagee. Rs. 1,701-8-0 remained due to the mortgagee after the sale of the property. The sale was confirmed on 21st December 1929. The mortgagee then made the present application for recovery of the balance due to him (Rs. 1,701-8-0) under Order 34, Rule 8-A, Civil P.C. Khuman Singh (son of the mortgagor) resisted the application principally on two grounds. He contended that Order 34, Rule 8-A, did not apply inasmuch as the mortgages in question were usufructuary mortgages and that the application of the mortgagee was also barred by time. The first Court granted the mortgagee's application on 31st October rejecting the objections of Khuman Singh. On appeal the learned District Judge reversed the order of the learned Munsif and gave his findings against Pt. Eaghubar Dayal mortgagee on both the points mentioned above. This appeal was filed by Pt. Eaghubar Dayal in this Court on 19th May 1931. The first question which we have to decide is whether the application of the mortgagee is- maintainable under Order 34, Rule 8-A, Civil P.C.

5. We have heard the appellant's learned Counsel at some length. In our opinion the learned District Judge was perfectly right in deciding the question against the appellant. Rule 8-A was inserted by Act 21 of 1929 (an Act to supplement the Transfer of Property Amendment Act 1929). Act 21 of 1929 came into force on the first day of April 1930. It may be that the mortgagee could make the application under Rule 8-A after Act 21 of 1929 came into force, but the question is whether his application is maintainable under that rule. Rule 8-A is in the following terms:

Where the net proceeds of any sale held under the last preceding rule are found insufficient to pay the amou