1. The facts of this case are these:
One Achche Lal and another, the owners of property, executed a possessory mortgage of the property in favour of one Ganga Bishen on the 26th of June 1885. On the 7th of November 1900, Ganga Bishen sub-mortgaged this property to Basdeo and in that mortgage he entered into the following absolute covenant viz., that if during the period of the mortgage, the property mortgaged, in any year by any reason, should pass out of the possession of Basdeo, or the mortgage-deed for any reason should be declared to be invalid, he, the executant, would be liable to pay the loss sustained by the mortgagee. The mortgagors took advantage of the Bundilkhand Encumbered Estates Act (Act 1 of 1903). Notices to claimants were issued in accordance with the provisions of that Act. Ganga Bishen, the mortgagee of the property from the proprietors, took no steps to realize the amount due to him under his mortgage of the 26th of June 1885. Basdeo did prefer a claim, but that claim was rejected on the ground that he was merely a sub-mortgagee and, therefore, his remedy was against his mortgagor and not against the proprietor. Subsequently Basdeo was ejected from the property. He' then preferred the suit, out of which this appeal has arisen, for recovery of the damages sustained by him by reason of his being dispossessed. Both the lower Courts passed a decree in his favour. But upou second appeal the learned Judge of this Court, from whose decision this appeal under the Letters Patent has been preferred came to the conclusion that Basdeo was guilty of negligence in not having preferred an appeal against the order of the Special Judge rejecting his claim, and that not having done so, he cannot recover against his sub-mortgagor upon the special covenant entered into in his mortgage-deed. We are wholly unable to agree with our learned brother is this decision. Ganga Bishen gave an absolute covenant to Basdeo undertaking to compensate him for any loss which he might sustain by reason of his dispossession during the period of the mortgage. He was dispossessed. It was for Ganga Biihen rather than' for Basdeo to take the proper steps before the Special Judge for enforcement of the mortgage of the 26th of June 1885. Whether it was open to Basdeo or not to appeal against the order of the Special Judge, it was certainly open to Basdeo to rely upon the absolute covenant contained in his mortgage-deed and to hold his submortgagor responsible for the loss which he sustained by reason of his dispossession. We Accordingly allow the appeal. We set aside the decree of the learned Judge of this Court and restore the decree of the lower appellate Court. The respondent must pay to the appellant all the costs incurred in the High Court.