1. This is an appeal by the defendant Kishen Lal. The facts of the case may be briefly stated as follows: The defendant Kishen Lal had a simple money decree against one Salig Ram, On the 20th of January 1910, he purchased the- property in dispute in execution of his decree and acquired possession on the 26th of June 1911. While this decree was under execution, the execution Court prepared a proclamation of sale and made the ordinary enquiries which are made under Order XXI, Rule 66. One Lakhmi Chand came forward, declaring himself to be a mortgagee of the property and asking that his mortgage might be notified. Kishen Lal objected and an enquiry was made, and the Court finally came to the conclusion that the mortgage was to be notified and accordingly directed that it should be so notified in the proclamation of sale. It was notified. The property was sold but as the certificate of sale shows, it was not sold subject to the mortgage. The mortgage was merely notified. Lakhmi Chand then brought a suit for sale on the basis of his mortgage to which suit, though he was well aware of Kishen Lal's interest, he failed to make Kishen Lal a party. A decree was obtained. The property was put to sale and was purchased by the plaintiff-respondent Rupram on the 20th of March 1915. He was formally put in possession but he was resisted by Kishen Lal and when he sought for mutation of names in the Revenue Court, that Court, finding Kishen Lal in possession, refused his application and referred him to the Civil Court, He accordingly brought the present suit cut of which this appeal has arisen, for possession of the property against Kishen Lal. He offered to allow Kishen Lal an opportunity of redeeming the mortgage of Lakhmi Chand. Kishen Lal contested the validity of the mortgage and he also pleaded that the mortgage as against him was time-barred. The lower Appellate Court held that by reason of the previous enquiry made, which we have already mentioned, this property had been sold subject to the mortgage and that it was not open to Kishen Lal to contest the validity of the mortgage. It held that the suit was not time-barred and it accordingly gave Rupram a decree for possession. Kishen Lal came to this Court on second appeal and the learned Judge of this Court who heard that appeal, upheld the decision of the Court below. The present appeal is one under the Letters Patent against the decision of the learned Judge of this Court.
2. It is obvious to us that the decision of the lower Appellate Court, that the property was sold subject to the mortgage, is erroneous. That is obvious from the fact that the order passed by the Court, on the objection of Kishen Lal to Lakhmi Chand's application, was merely to. the effect that the mortgage was to be notified. No order whatsoever was passed under Order XXI, Rule 62, that the property was to be sold subject to the mortgage, The only order passed was one under Order XXI, Rule 66, that the mortgage was to be notified. It was, therefore, quite unnecessary for Kishen Lal to bring any suit within the period of 12 months to get the miscellaneous order set aside. It was clearly open to him, id the present suit, to contest the validity Of the mortgage of Lakhmi Chand, and this case must, therefore, go back in order to give him an opportunity of contesting the validity thereof. This case is on all fours with the case of Shib Kunwar Singh v. Sheo Prasad Singh 28 A. 418 : 3 A.L.J. 200 : A.W.N. (1906) 68. In order, therefore, to enable us to pass a proper decree in this case, we have to remit the following issues to the Court below for decision:
(1) Was the mortgage in favour of Lakhmi Chand a valid and binding mortgage on the property?
(2) Was it on the date of suit a subsisting mortgage or was it time barred?
3. The parties will be allowed to give fresh evidence on these two issues. The ordinary period of ten days will be allowed for objections on receipt of the findings.