R.N. Gurtu, J. - (1.) This is a Civil Revision which has been referred to this Bench. It arises under the following circumstances. The applicant had obtained a simple money decree against one Shitla Sahai in 1937 and had put that decree in execution and had prayed for the sale of the property in dispute. The property was protected land under the U.P. Debt Redemption Act, 1940. Therefore the Collector granted a self-liquidating mortgage dated the 15th May 1947 for a period of 12 years. On 29th September 1948 possession was delivered to the applicant and his name was mutated in the Khewat.
(2.) The opposite parties of this revision had obtained a simple mortgage of the very same property in 1929. On 27th March 1944 a preliminary decree for sale of the property was passed and on 10th May 1947 a final decree was passed for sale. In view of the fact that this land was protected land under the U.P. Debt Redemption Act, once again a self-liquidating mortgage was granted to Bhawani Pher on 28-8-1949 for a period of 12 years and in pursuance of that mortgage he obtained possession on 17-10-1949 by dispossessed" the applicant. It may here be stated that the applicant was not made a party to the proceedings wherein a self-liquidating mortgage way granted to Bhawani Pher. The applicant having been dispossessed filed an application in the executing court under the provisions of Or. 21, Rr. 100 and 101, C.P.C. complaining of the dispossession. That objection was dismissed by the executing court on the ground that the applicant was a representative of the common mortgagor judgment debtor, and was not in "possession" when dispossessed of the land "on his own account." The applicant has filed this revision in this court and has preferred this course rather than institute a suit to establish the right which he claims to the present possession of the land under R. 103 of Or. 21, C.P.C.
(3.) It was contended before us by learned counsel for the applicant that the court below was wrong in holding that the applicant was a representative of the judgment debtor and erred in refusing to exercise-jurisdiction under the aforesaid Or. 21, Rr. 100 and 101, C.P.C. for that reason. His contention was that the holder of a self-liquidating mortgage under the provisions of Sec. 17 of the U. P. Debt Redemption Act (Act XIII of 1940) is not a representative of his mortgagor, but that the mortgagee under a mortgage created under Sec. 17 of the said Act holds the mortgaged land on his own account. In order to deal with the submission, we think, it is necessary to quote the last two provisos of Sec. 17 (1) which are as follows:- "Provided also that the court may execute a decree to which this Act applies by granting to the decree-holder a self-liquidating mortgage, for a period of not more than twenty years, of such land as is protected from sale, transfer or foreclosure by the provisions of this section. Provided also that when a mortgage has been granted under the provisions of this section the same land shall not be mortgaged in execution of any other decree to which this Act applies against the same debtor or his heir or successor if the term of the mortgage together, with the term or terms of the previous Mortgage or mortgages exceed twenty years.";