JUDGMENT

Bennett, J - This is a second civil appeal against the judgment and decree dated 13th December, 1938, passed by the learned Civil Judge of Partabgarh. The learned Civil Judge set aside the judgment and decree dated 26th September, 1938, passed by the learned Munsif of Partabgarh. The suit out of which the appeal arises was brought by a mortgagee in whose favour the first two defendants had executed a usufructuary mortgage of certain property on 14th June 1933. The deed had been registered on 15th June. On that day, namely 15th June, the same defendants executed a similar mortgage of the same property in favour of defendant 3. The deed in that case too was registered on 15th June, but it was registered before the earlier deed. That, however, does not affect the case in view of the provisions of Section 47, Registration Act. There is now no, dispute on that point.

2. The mortgagee of 14th June did not get possession; this was obtained by the subsequent mortgagee of 15th June. The former then sued to recover possession and in the alternative asked for a money decree. The deed of 14th June provided that if the mortgagee did not obtain possession or if he lost possession he could recover his money with interest by sale of the mortgaged property or any other pro-perty of the mortgagor. The trial Court held that the plaintiff was entitled to a decree for his mortgage money with interest thereon to be realised from sale of the mortgaged property. In first appeal the mortgagee contended that he was entitled to possession of the mortgaged property and the first appellate Court accepted this contention. The learned Civil Judge observed that the mortgage deed showed that the mortgage was an ordinary usufructuary mortgage, and he was of opinion that the addition of the condition that if the mortgagee lost possession he would be entitled to recover the mortgage money did not render it anything else. He was, therefore, entitled to possession of the property mortgaged and he decreed the suit for possession.

3. In second appeal it was argued first of all that in view of the fact that possession was not given, and also in view of the additional clause providing for a money remedy, the mortgage was really a simple mortgage as defined in Section 58(b), T.P. Act. Learned Counsel for the appellant then referred to the Lahore case in Mt. Mohan Devi v. Talib Mehdi Khan, A.I.R. 1938 Lah. 145. In this case it was held that where a mortgage deed contained one clause which would make it a usufructuary mortgage, but another clause provided in the most explicit terms for recovery of the amount due from the mortgaged property the mortgage was not usufructuary, but anomalous. Learned Counsel for the appellant also referred to the Privy Council case in Narsingh Partab Bahadur Singh v. Mohammad Yaqub Khan, A.I.R. 1929 P.C. 139. In this case it was held that a mortgage which is a combination of a simple mortgage and a usufructuary mortgage does not cease to be so and become an anomalous mortgage because it contains certain clauses. It was also held that in a mortgage which was a combination of a simple and a usufructuary mortgage and the mortgagors failed to make over possession to the mortgagee and thereby deprived the mortgagee of part of his security, then under Section 68, T.P. Act, the money becomes payable and the mortgagees are entitled to a money decree for the amount due. It should be noted that in this case the suit was brought to recover the money: it was not brought for possession. In considering this pronouncement of their Lordships it is also to be noted that the definition of "anomalous mortgage" has since been changed. Formerly the definition was contained in Section 98 of the Act and read as follows:

In the case of a mortgage not being a simple mortgage a mortgage by conditional sale, an usufructuary mortgage or an English mortgage, or a combination of the first and third, or the second and third, of such forms, the rights and liabilit