Varma, J.:— This miscellaneous second appeal arises out of the following facts which have been well summarised by the lower appellate Court:—

The judgment-debtors executed a usufructuary mortgage bond in favour of the respondents for a sum of Rs. 6,411 on the 16th of March, 1934, giving them possession over a certain house in the town of Arrah. On the 18th of March, 1934, just two days after the execution of the usufructuary mortgage bond they executed a kerayanama by virtue of which they held the house in their possession on payment of Rs. 48 as monthly rent. As there was a default in the payment of rent the mortgagees brought a suit for recovery of arrears of rent and obtained a decree in the execution whereof they proceeded to attach and sell the house mortgaged. The judgment-debtors appeared on the 9th November, 1940, and filed a petition under Order XLI, rule 6 of the Code of Civil Procedure praying to stay the sale till the disposal of the appeal. On being asked to furnish security in cash by the 22nd November, 1940, to which date the sale was adjourned, they filed another petition on that date for three weeks' time to pay the decretal dues after waiving all rights to fresh sale proclamation and other irregularities. The case was adjourned to the 25th November, 1940, for deposit of the security money. On another petition being filed on that date the sale was adjourned to the 6th December, 1940. On the 4th December, 1940, however, the judgment-debtors, i.e, the present appellants, filed a petition under Order XXXIV, rule 14, stating that as the decree-holder was also the mortgagee of the house which was to be sold, the house could not be sold except by filing a mortgage suit for enforcement of the mortgage lien as contemplated by that section. This petition was rejected by the executing Court and an appeal of the judgment-debtors was dismissed by the lower appellate Court.

The real point to be decided in this appeal is whether the provisions of Order XXXIV, rule 14-of the Code of Civil Procedure apply to the facts of the present case. The usufructuary mortgage bond, dated the 16th March, 1940, recites that the mortgagors mortgaged one house to the creditor by way of usufructuary mortgage for a period of one year from the month of Chait 1342 Fasli and the said mortgagee was put in possession and occupation of the said house. The bond further recites:—

“It is requisite that the said rehandar should enter into and remain in possession of the said rehan property as rehandar himself or let it out on rent or make such arrangement which he thinks may be beneficial to him. He shall appropriate the rent or the income therefrom in lieu of the interest on the amount of loan.”

The kerayanama refers to the mortgage bond and says:

“We the executants have taken the said mortgaged house on rent at the rate of Rs. 48 per mensem from the 1st Baisakh 1341 Fasli. We the executants shall reside in the said mortgaged house as tenants and shall pay the rent month by month at the end of the month calculating it by the Hindi month. In case the rent falls in arrears the said rehandar is and shall be competent to realise the rent by instituting a suit in court or by whatsoever means he thinks proper the amount of rent together with interest at the rate of 8 annas per hundred rupees per mensem until the date of realisation from us the executants and shall get the house vacated by us.”

The last clause of this kerayanama runs as follows:—

“This kerayanama is executed for an indefinite period to continue till the redemption of the rehan bond, dated the 16th March 1934, corresponding to 18th Chait 1341 Fasli.”

Both these documents were registered on the 19th March, 1934.

Order XXXIV, rule 14 of the Code of Civil Procedure runs as follows:—

“Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order II, rule 2.”

The question that we have to consider is whether this decree which was being executed was

“for the payment of any money in satisfaction of a claim arising under the mortgage.”

This rule is evidently for the protection of the mortgagor. It may be observed that the sale in execution of a decree on a mortgage passes the interests of both the mortgagee and the mortgagor, while the sale in execution of a money decree conveys only the interest of the mortgagors, namely, the equity of redemption. The object is to prevent the mortgagee from bringing to sale the equity of redemption in execution of a money decree which he may obtain in respect of a claim arising under the mortgage. Mr. Sarjoo Prasad, appearing on behalf of the appellants, has urged that when the mortgage bond transferred the house and authorised the mortgagee to realise rent in lieu of interest and when the mortgagee let out the house to the mortgagors themselves, this was with the object of realising the interest and, therefore, the claim for rent by the mortgagee from the mortgagors was a claim arising under the mortgage. The lower appellate Court was of opinion that the lease was a separate transaction and, therefore, it did not come under the provisions of Order XXXIV, rule 14.

On this point there apparently existed a difference of opinion amongst the various High Courts. Mr. Sarjoo Prasad, however, urges that the question has been set at rest by the decision of their Lordships of the Judicial Committee in Panaganti Ramarayanimgar v. Maharaja of Venkatagiri, which has been followed by the Calcutta High Court in Mahomed Yakub Miah Majumdar v. Namar Ali. In the latter case there was no provision made in the mortgage bond for payment of interest and the debt was to be cleared within three years. On the same date as the mortgage bond the mortgaged property was let out to the mortgagor for the same period of three years on an annual rental. When the mortgagee brought a suit to recover the arrears of rent, obtained a decree and wanted to sell the mortgaged property, it was held that the mortgage deed and the kabuliyat were parts of the same transaction and, therefore, the mortgagee was not entitled to bring the mortgaged property to sale “otherwise than by instituting a suit for sale in enforcement of the mortgage”

The only decision of this Court referred to is Ramnarayan Singh v. Bishwanath Missir. In that case the mortgagor after executing a usufructuary mortgage took a lease from the mortgagee, and having failed to pay the rent, the mortgagee brought a suit for arrears of rent. In execution of the decree, the mortgagee wanted to sell the mortgaged property. The mortgagor judgment-debtor objected that Order XXXIV, rule 14 of the Civil Procedure Code was a bar to the sale in execution of the rent decree. It was held by Coutts and Adami, JJ. that the suit was one between a landlord and tenant and not between a mortgagee and mortgagor, the claim being based not upon the mortgage but upon the independent contract of lease and, therefore, the provisions of Order XXXIV, rule 14, did not bar the sale of the equity of redemption vested in the judgment-debtor. Their Lordships differed from the view taken by the Allahabad High Court in the Kadma Pasin v. Muhammad Ali which was relied upon by the lower Court in support of its finding that the decree-holder could not sell the equity of redemption in execution of his decree, as the claim which culminated in the decree, was a claim arising directly under the mortgage. In Kadma Pasin's case certain lands and also the right to collect offerings at a temple were mortgaged, and six weeks after the date of mortgage, the mortgagee entered into a contract with the mortgagor whereby it was arranged that the mortgagor should make the collection of temple offerings and should pay to the mortgagee Rs. 700 a year. The mortgagor failed to make the payment, so the mortgagee sued him and obtained a simple money decree, in execution of which he applied for the sale of the mortgaged property. The learned Judges of the Allahabad High Court held that the money in respect of which the decree was passed, represented in substance the usufruct of the mortgaged property, to which the mortgagee was entitled as part of his contract of mortgage and that the claim to it was a claim airsing under the mortgage. The learned Judges of this Court relied upon the Full Bench decision of the Calcutta High Court in Uttam Chandra Daw v. Raj Krishna Dalal, where on the date on which the mortgagors executed a usufructuary mortgage, they also executed a kabuliyat in favour of the mortgagee under which they were to hold the mortgaged land as tenants under the latter on payment of half the produce. When the mortgagors defaulted and a suit for rent and ejectment was brought against them, in execution of the decree for rent the mortgagee purchased the equity of redemption.

But the view taken by the learned Judges of this Court in Ramnarayan Singh v. Bishvanath Missir has lost much of its force after the pronouncement of the Judicial Committee in Panganti Ramarayanimgar v. Maharaja of Venkatagiri. That was a case where the suit arose out of a transaction embodied in a deed of mortgage with possession of immoveable properties, and a deed of muchilika or counterpart lease, by which the mortgagor took a lease, on a fixed yearly rent, of a part of the properties covered by the mortgage deed. The two deeds were executed and registered on the same date. The mortgagor remained in possession of the properties taken in lease but did not pay any portion of the stipulated rent. The mortgagee (lessor) obtained a money decree in respect of the instalments of the rent, but it was common ground in the suit that decree as well as other instalments of rent remained unsatisfied. The equity of redemption of the part of the properties mortgaged, which was taken in lease, was sold in execution of a money decree and purchased by the plaintiff. The plaintiff by his plaint had prayed (a) that an account might be taken of the amount due to the defendants on the securities; (b) that on payment of the same delivery be made of the documents and of possession of the properties free from any encumbrances. The suit for redemption and possession was filed by an assignee of the mortgagor's interest against an assignee of the mortgagee. The plaintiff alleged that defendant no. 1 was claiming a great deal more than the sum which he admitted to be due on the mortgage of the properties which was given in lease, and he (plaintiff) asked that an account might be taken of the amount due to the defendant no. 1 on the security of the properties. The defendant no. 1 annexed an account to his written statement, including the arrears of rent, and he also asked that an account should be taken of all moneys due to him and the plaintiff declared entitled to redeem only on payment of the whole amount found due, together with his costs of suit. The question arose, therefore, whether the defendant was entitled to credit for the arrears of rent in respect of the mortgaged properties granted in lease to the mortgagor. It was held by the Subordinate Judge that the arrears of rent payable under the lease were not in any way charged upon the properties which had been mortgaged and, therefore, the defendant was not bound to pay the same for the purposes of redemption. It was contended before the Board by the appellants that the two deeds—the mortgage and the lease—should be read together as they formed parts of one transaction. Their Lordships allowed this contention of the defendant-appellant before them, and in the course of the judgment, Lord Sinha observed as follows:—

“It seems to their Lordships that the course suggested by the first respondent's counsel would lead to a circuity of action and would be contrary to the provisions of Order XXXIV, rule 1, of the Code of Civil Procedure, which requires all persons having an interest in the mortgage security to be joined as parties to any suit relating to the mortgage. The object of that provision is that all claims affecting the equity of redemption should be disposed of in one and the same suit. If the defendant did not set up his charge for the arrears of rent in this suit serious questions might well arise as to whether he would be entitled subsequently to bring a suit to enforce that charge. Their Lordships are of opinion that the defendant-appellant is entitled to add the sums in question to his claim in this suit.”

It is doubtful in the light of this decision of the Judicial Committee if the mortgagor could be allowed to redeem without paying the arrears due from him as rent. If that is the position when the mortgagor wants to redeem, Order XXXIV, rule 14, applies with equal force when the mortgagee wants to realise rent from the mortgagor by the sale of the mortgaged property on the basis of the lease of property mortgaged to him.

In these circumstances, I would allow the appeal and set aside the orders of the Courts below. In the special circumstances of the case, there will be no order for costs: the parties should bear their costs throughout.

Fazl Ali, J.:— I agree.

K.D

Appeal allowed.