1. This is a defendant's appeal arising out of a suit for ejectment. The plaintiff is a mortgagee who rented a house mortgaged to him to the mortgagor. One of the conditions of the lease was that if the tenant failed to pay rent for a year he was liable to ejectment. The tenant defaulted in the payment of rent for one year and the plaintiff therefore filed the suit out of which this appeal arises. The defendant pleaded Section 7, Encumbered Estates Act. This plea was repelled by the Courts below. In second appeal learned Counsel contended that the suit was barred in virtue of the provisions of Section 7(b), Encumbered Estates Act. In support of this contention reliance was placed upon a Bench decision of this Court in Mukat Bihari Lal v. Manmohan Lal : AIR1938All165 . In that case the facts were that the defendant had defaulted in the payment of rent but bad presented an application under Section 4, Encumbered Estates Act, and prior to the institution of the suit for ejectment the Collector passed an order under Section 6 of the Act. It was held that the suit for ejectment was barred by Section 7(b), Encumbered Estates Act. Upon a consideration of the judgment in that case it is apparent that the proviso to Sub-section (b) of Section 7 was not brought to the notice of the Court. That proviso is as follows:
Provided that when a landlord has executed a usufructuary mortgage in respect of any of his land and is in possession of that land as a thekadar of a mortgagee, no fresh process shall issue for his ejectment from that land for arrears of the theka rent.
2. It is to be remarked that the proviso makes no reference to house property. In my judgment the provisions of Sub-section (b) were not intended to apply to a lease of house property. In the result the appeal is dismissed with costs. Leave to appeal is granted.