1. This appeal arises out of a suit for sale on a mortgage. The Courts below have given the plaintiff a simple money decree, holding that the mortgage sued upon was a usufructuary mortgage and that: therefore, by reason of the provisions of Section 67 of the Transfer of Property Act, plaintiff could not obtain a decree for sale of the property.
2. The plaintiff comes here in second appeal and it is contended that the Courts below have wrongly interpreted the mortgage-deed in suit and that upon a true construction of that document he was entitled to a decree for sale of the mortgaged property.
3. The mortgage-was for a term of five years, during which time the mortgagees were to remain in possession and receive the profits of the property in lieu of interest. The mortgage was to be redeemed after the expiry of the term. Then follows a provision to the following effect: After the expiry of the term, the mortgagee shall have power to institute a suit and realise the money by public or private sale of the property mentioned in this document and of other movable and immovable property belonging to the mortgagors. The presence of a provision of this nature in the document in suit clearly takes the mortgage out of the category of usufructuary mortgages, pure and simple, as defined in Section 58(d) of the Transfer of Property Act. The provision that the mortgagee shall have power to institute a suit and recover his money by public or private sale of the property, set out in the mortgage-deed, is an integral portion of the contract entered into between the parties and should, in our opinion, be given effect to. The terms of the mortgage clearly shows that it was not in the contemplation of the parties that the mortgage-money should be realised out of the rents and profits of the property. It was the intention of the parties/that the mortgage-money should be re-paid after the expiry of the five years. The provision set out above differentiates this case from those quoted on behalf of the respondents in this appeal. We allow the appeal, and modify the decree of the Court below and direct that a decree be passed for the sale of the mortgaged property against all the defendants respondent Nos. 1 to 13 (2nd and 4th party defendants and subsequent mortgagees); and further direct that the said defendants Nos. 1 to 13 do pay to the plaintiff the sum of Rs. 300 together with the costs incurred by the plaintiff in all Courts within six months from this date and that if they fail to pay the said amount within the aforesaid period, the zemindari rights and interests of defendants Nos. 1 to 5 (first party mortgagors) or a sufficient part thereof in Mahal Baijni, Mouza Jonahi, Perganah Mirganj, District Bareilly, be sold in Satisfaction of Rs. 150, portion of the said decretal amount, and proportionate costs, and also the zamindari rights and interests of defendant. Nos. 6 to 8 (fourth party mortgagors) or a sufficient part thereof in Mahal Baijni Beka Singh, Mouza Jonahi Parganih Mirganj, District Bareilly, be sold in satisfaction of Rs. 150, the remaining portion of the decretal amount and proportionate costs, the sale profit to be duly applied towards the satisfaction of the plaintiff's decree; and that the balance, if any, be paid to the defendants mortgagors, second and fourth parties, respectively entitled to receive the same.