Mookerjee, J.:— These are three appeals under Cl. 15 of the Letters Patent from the judgment of Mr. Justice Newbould in three connected second appeals in suits for recovery of possession of land upon declaration of title. The disputed lands are comprised in a holding held by three brothers, Bhut Nath Mal, Akshay Kumar Mal and Hari Charan Mal, under one Premamayi Dasi, now deceased. On the 9th September, 1901, the Mals mortgaged a portion of their holding, comprising an area of 9 Bighas 9½ Cottahs out of 11 Bighas 18½ Cottahs of land, to the respondent, Panton Charan Chakrabarti. On the 14th September, 1914, the mortgagee obtained a decree on his mortgage against the mortgagors.

2. On the 12th May, 1915, the mortgagee-decree-holder purchased the hypothecated property at the execution sale which was confirmed in due course on the 24th June, 1915. The purchaser, however, was resisted by the defendants appellants when he attempted to take delivery of possession through the Court. This resulted in a proceeding under O. 21, R. 100 of the CPC which terminated against the purchaser on the 23rd September, 1916. The purchaser accordingly instituted the present suits on the 26th September, 1917. The defendants repelled the claim of the plaintiff on the allegation that they were lessees under a person who had purchased the entire holding of the Mals at a sale held in execution of a decree for arrears of rent.

3. It appears that the Mals defaulted to pay rent to their superior landlord, with the result that the executor to the estate of Premamayi Dasi obtained a decree for rent against them. The holding was sold in execution on the 13th January, 1904, when the landlord became the purchaser.

4. The sale was confirmed on the 7th May, 1904, and thereafter the defendants took settlement of different parcels on the 22nd November, 1906, the 28th November, 1906 and the 17th January, 1907. The defendants pleaded in answer to the claim of the plaintiff that his title on the basis of the mortgage could not prevail against their title on the basis of the rent decree.

5. The trial Court overruled this contention and decreed the suits. On appeal the Subordinate Judge reversed the decision and dismissed the suits. On second appeal to this Court, Mr. Justice Newbould has reversed the decision of the Subordinate Judge and restored the decrees of the primary Court.

6. On the present appeals under the Letters Patent, the opinion expressed by Mr. Justice Newbould has been assailed as founded on an erroneous view of the relative rights of the parties.

7. The Subordinate Judge adopted the view that the effect of the sale in execution of the rent decree was to destroy forthwith the mortgage held by the plaintiff. This was clearly erroneous.

8. Section 159 of the Bengal Tenancy Act provides that where a tenure or holding is sold in execution of a decree for arrears due in respect thereof, the purchaser shall fake subject to the interests defined as protected interests but with power to annul the interests defined as incumbrances, with the reservation that the power to annul shall be exercisable only in the manner directed by hap. XIV.

9. S. 167 prescribes the procedure to be adopted for annulling an incumbrance. A purchaser, having power to annul an incumbrance and desiring to annul the same may, within one year from the date of the sale or the date on which he first has notice of the incumbrance, which-ever is later, present to the Collector an application in writing requesting him to serve on his incumbrancer a notice declaring that the incumbrance is annulled.

10. The Collector on receipt of prescribed fee, shall cause the notice to be served in compliance with the application, and the incumbrance shall be deemed to be annulled from the date on which it is so served. It is consequently plain that a sale for arrears of rent does not ipso facto cancel the incumbrance and this was ruled in Beni Prasad v. Rewat Lall(1), Kalikanand v. Biprodas(2) and Pran Krishna Atul Krishna(3).

11. The procedure provided by S. 167 is the only mode of annulling the incumbrance, and the purchaser must have recourse to the prescribed mode within the specified period, if he desires to annul the incumbrance: Soshi Bhusun v. Gogan Chunder(4). In the case before us, the defendants contended that the effect of the sale for arrears of rent was to keep away the mortgage held by the plaintiff. This position was entirely untenable.

12. There is no indication that the landlord purchaser at the rent sale who, as pointed out in Pran Krishna v. Atul Krishna is like any other purchaser, bound to follow the provisions of S. 167, has ever exercised the option vested in him. There is thus no escape from the position that on the expiry of one year from the date of the rent sale or from the date when the landlord had notice of the incumbrance, the mortgage could not be annulled. From that date onwards the holding in the hands of the landlord purchaser would be subject to a mortgage no longer liable to be impeached or extinguished; Bidhumukki v. Bhaba Sundari(5).

13. Dr. Kanjilal has, however, contended that whatever the position of the mortgagee might have been if he had continued to be a mortgagee, he has lost the protection he might have enjoyed as an encumbrancer, by reason of the mortgage-decree and the mortgage sale.

14. In support of this view, reliance has been placed upon the decisions of the Judicial Committee in Het Ram v. Shadi Ram(6) and Matrn Mal v. Durga Kunwar(7). These cases are clearly distinguishable and are of no assistance to the appellants, as they are authorities only for the proposition that a decree, made under Section 89 of the Transfer of Property Act for the sale of mortgaged property, has the effect of substituting the right of sale thereby conferred upon the mortgagee for his rights under the mortgage, and the latter rights are extinguished.

15. But as pointed out by the Judicial Committee in Sukhi v. Gkulam Safdar(8) this has no application to cases of sales under Section 34 of the CPC which has replaced the group of SectionS 85-90 inclusive of the Transfer of Property Act. The words “and thereupon the defendant's right to redeem and the security shall both be extinguished,” which occurred at the end of Section 89 of the Transfer of Property Act, do not occur in O. 34, R. 5 of the CPC.

16. In these circumstances, the law remains as it certainly was before the Transfer of Property Act, 1882, namely, that an owner of a property who is in the rights of a first mortgagee and of the original mortgagor as acquired at a sale under the first mort-gage is entitled, at the suit of a subsequent mortgagee who is not bound by the sale or the decree on which it proceeded, to set up the first mortgage as a shield.

17. This does not militate against the decision of the Judicial Committee in Bhawani Kuwar v. Mathura Prasad(9) which was applied in Subjan v. Haripada(10). In the events which have happened here, it cannot be maintained that the incumbrance had become extinct and lost in the mortgagee's overriding right when he became the complete owner of the lands.

18. In our opinion, the relative rights of the purchaser at the rent sale and the mortgage must be determined with reference to their position at the time of the sale. The purchaser acquired the statutory right to annul the mortgage within a prescribed period; he has not availed himself of the privilege. He consequently holds the property subject to the mortgage and is entitled to redeem: Bidhmmkri v. Bhaba Sundari.

19. The mortgagee has obtained a decree on his mortgage and has purchased the equity of redemption. This does not bind the purchaser at the sale for arrears of rent, in the sense that it does not extinguish his right to redeem the mortgage, as he was not a party to the mortgage suit. Brojonath v. Khelut Chunder(11), Units v. Zahur(12), Gobind Lal v. Ramjanam(13), Maung Tha v. Maung Mya(14), Jugdeo v. Habibullah(15), Kalu Sharip v. Abhay Charan(16). The landlord purchaser is also not a party to these suits and a decree for redemption cannot consequently be made in his favour.

20. On the other hand, the only defence, put forward by the defendants, namely, that the mortgage which is the root of the title of the plaintiff was extinguished ipso facto by the rent sale, cannot be sustained. There is accordingly no answer to the claim for recovery of possession put forward in this suit by the plaintiff: Kalu Sharip v. Abhay Charan.

21. We do not, however, decide how far and on what terms he is liable to be redeemed, in a suit appropriately framed in that behalf, either by the defendants or by their landlord.

22. Two minor points urged by the appellants may be briefly noticed. In the first place, it was contended that the defendants were entitled to priority, as rent is a first charge on the tenure or holding under Section 65 of the Bengal Tenancy Act.

23. This argument, which may find apparent support from the decisions in Gopinath v. Kashinath(17), and Taibatannessa v. Parvabati(18) is based upon a misapprehension of the true effect of S. 65, which only intends what is explicitly laid down in subsequent sections of the Act, that is, those in Chapter XIV namely, that the charge should be enforced by the sale of tenure or holding from of incumbrances, and if in any case the decree for rent either has not been or cannot be enforced by the sale of the tenure or holding, the charge created by S. 65 cannot be enforced in any other way: Soshi Bhusun v. Gogan Chunder, Fotick v. Foley(19), Royzuddi v. Kali Nath(20), Panangippali v. Suriyanarayana(21). In the second place, it was contended that the suits were barred by the two years rule of limitation enunciated in Article 3 of Sch. III of the Bengal Tenancy Act. There was obviously no foundation for this argument, because the plaintiff has never in fact been dispossessed, and adverse possession against the mortgagor, it is well settled, does not effect a simple mortgagee who as such is not entitled to possession; Ptiya Sakhi v. Bireswar(22).

24. The result is that the decrees made by Mr. Justice Newbould are affirmed and these appeals dismissed with costs.

25. Appeals dismissed.