1. This appeal arises out of a suit for redemption of a mortgage. It appears that the predecessors of defendants 3 to 10 mortgaged certain properties to defendant 1 in the year 1892. The plaintiff in execution of a money decree upon a simple bond, purchased a portion of the properties mortgaged on 29th September 1896 and obtained a delivery of possession thereof on 23rd January 1897 Subsequently defendant 1 brought a suit upon his mortgage but did not make the plaintiff a party to the suit. He obtained an ex parte decree on the mortgage on 5th February 1897 and in execution purchased the properties on 2nd February 1899. He obtained delivery of possession of the properties in 1899 and the plaintiff was dispossessed by defendant 1 of the properties purchased by him. Defendants 3 and 4 subsequently got the ex parte decree and sale held thereunder set aside on 21st November 1908, and the suit was thereafter tried and a decree was passed on 26th January 1909. In execution of the decree all the properties mortgaged were again advertised for sale, but before the sale took place, defendants 1 and 2 purchased the properties from defendants 3 to 10 on 29th July 1910. The plaintiff brought the present suit for redemption on 19th September 1911. The Court of first instance gave a decree for redemption. On appeal the Court of appeal below has held that the suit was barred by limitation, as defendant 1 had been in continuous possession for 12 years since 1899. The plaintiff has appealed to this Court.
2. It is true that defendant 1 as a simple mortgagee was not entitled to possession, and the possession he obtained was as purchaser and not as mortgagee.
3. But in 1908, when the ex parte decree and sale were set aside and the suit upon the mortgage with respect to all the properties mortgaged, including the portion purchased by the plaintiff, was proceeded with defendant 1 (as appears from the judgment in that case) was treated as mortgagee in possession and made to account for the actual realisations made by him. In the circumstances we think that the possession of the defendant 1 must be treated as that of a mortgagee in possession. That being so, it was not adverse to the plaintiff, who was purchaser of a portion of the equity of redemption, and the suit is not, therefore, barred by limitation. The decree of the lower appellate Court must therefore be set aside and that of the Court of first instance restored with this variation that the period of six months will run from this date. We make no order as to costs.
V.B/R.K
4. Appeal allowed.