1. We are invited in this rule to set aside an order made under R. 101, O. 21 of the CPC, 1908. The facts are not in controversy and may be briefly stated. The landlords of an occupancy holding obtained a decree for rent on 17th September 1910 against the recorded tenant. They took out execution of this decree and the holding was brought to sale on 14th May 1912 when it was purchased by the petitioner. The sale was confirmed in due course and possession was delivered to the purchaser. The opposite party thereupon applied under R. 100, O. 21 on the ground that he was in possession of the holding as mortgagee from the tenant and should not have been dispossessed by the purchaser. The Court below has given effect to this objection and restored the mortgagee to possession, on the ground that as the sale took place in execution of a decree for rent which operated as a decree for money, the purchaser has acquired the holding subject to the interest of the mortgagee from the tenant. It is plain that this ground cannot justify the order made under R. 101, for no question of title can to investigated in a proceeding of this nature. But our attention has been drawn to the fact that the Court below has found on the evidence that the mortgagee applicant was in possession as mortgagee, that is, that the mortgage was a real transaction and the mortgagee was in actual occupation of the land when he was dispossessed by the purchaser. The question for consideration is whether under these circumstances the order may not be deemed to have been properly made under R. 101.
2. Rule 101, O. 21 provides that where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment debtor, it shall direct that the applicant be put into possession of the property. Is the mortgagee from the tenant in possession of the holding on his own account, within the meaning of the rule? We have been asked by the petitioner to answer this question in the negative, and to hold that the mortgagee from the tenant is in possession of the holding on account of the judgment-debtor. In support of this contention reliance has been placed upon the decisions in Asgur Ali v. Asgur Ali . [1873] 20 W.R 373. and Brajabala Devi v. Gurudas Mundle . [1906] 33 Cal. 487.
3. These cases however are clearly distinguishable; they are authorities merely for the proposition that when a person in actual occupation of land has been dispossessed, such dispossession may amount to dispossession of the person from whom he has derived title to possession.
4. For instance, if a mortgagee or a tenant in actual occupation of land has been dispossessed, the termination of his possession may be equivalent to the dispossession of the mortgagor or of the landlord because the mortgagor or the landlord is in possession through the mortgagee or the tenant respectively. It does not follow however that when a person is in possession as mortgagee, he is in possession not on his own account but on account of the mortgagor within the meaning of R. 101, O. 21. The question for determination is for whose benefit is the mortgagee in possession. He is clearly in possession with a view to the realization of the money advanced to the mortgagor. Prom this point of view his possession may be hostile to the mortgagor, for he is entitled to continue in possession notwithstanding the wish of the mortgagor to the contrary. It is plain that in a case of this description the mortgagee is really in possession on his own account although such possession is (derived from the mortgagor. We must hold accordingly, as the Court below has done, that the mortgagee was in possession on his own account and not on account of the judgment-debtor within the meaning of R. 101. The same conclusion is reached if we look at the matter from another point of view. Assume for a moment that the holding is non-transferable and that the mortgage transaction has not created any valid interest on the mortgagee. He is from this standpoint, in possession as a trespasser. Consequently, he is in possession on his own account and not on account of the judgment-debtor. Assume, on the other band, that the holding is transferable and that the mortgage transaction created a valid title in the mortgagee. The possession of the mortgagee is that of an encumbrancer, and the purchaser must annul the incumbrance before he can terminate the possession of the mortgagee. This he has not done. Consequently, the purchaser is not entitled to oust the mortgagee summarily in execution proceedings. From every possible point of view, the conclusion of the Court below is unassailable, and, it is in fact in accord with the decision of Shafiuddin v. Lochan Singh . [1878-80] 2 All. 94..
5. The result is that this rule must be discharged with costs. We assess the hearing fee at two gold mohurs.
V.B/R.K
6. Rule discharged.