1. This is the second appeal by the defendants against the decree of the lower appellate Court setting aside a decree of an Assistant Collector for the ejectment of the defendant-appellants as sub-tenants of certain plots. The plaintiffs were owners of a zemindari share in a mahal in which sir plots were situated, and these plots were originally the sir of the plaintiffs and were so recorded in F. 1332. For that year the defendants were entered as sub-tenants of 12 and 18 years. On 12th March 1913, there was a deed of mortgage by conditional sale executed by the plaintiffs of the whole of their zemindari share in this mahal in favour of the defendants. A preliminary decree was obtained by the defendants for foreclosure of that mortgage on 12th March 1922 and a final decree on 2nd December 1922 and, on 16th February 1923, the defendants obtained possession from the civil Court of the zemindari share. The plaintiffs claim that as a result of a transfer of their zemindari share the plaintiffs had become exproprietary tenants in their sir plots, and that they are entitled to eject the defendants who are still their sub-tenants. On the other hand, the learned Counsel for the appellants contends that no exproprietary tenancy arose on this transfer, because it was on a decree of foreclosure and that Section 10, Act 2 of 1901, does not refer to a decree, of foreclosure. Originally Section 7, Act 12 of 1881 provided:
Every person who may hereafter lose or part with his proprietary rights in any mahal shall have a right of occupancy in the land held by him as sir in such mahal at the date of such Joss or parting.
2. Under that section there was a ruling in Sheobarut Rai v. Ram Rai  A.W.N. 273, in which it was laid down that a mortgage by a deed of conditional sale resulted in the creation of exproprietary rights. In Act 2 of 1901 the language used in Section 10 is as follows:
Every proprietor whose proprietary rights in a mahal or in any portion thereof, whether in any share therein, or in any specific area thereof, are transferred, on or after the commencement of this Act, either by sale in execution of a decree or order of a civil or revenue Court, or by voluntary alienation, otherwise than by gift or by exchange between cosharers in the mahal shall become a tenant with a right of occupancy in his sir land, etc.
and there is a further provision that a usufructury mortgage shall be deemed to be a transfer within the meaning of this section. In the present Agra Tenancy Act, Act 3 of 1926, the wording has been made more specific and includes a decree of foreclosure, but the case before us is governed by the language of Act 2 of 1901.
3. The Transfer of Property Act, Section 58(c) states:
Where the mortgagor ostensibly sells the mortgaged property:
on condition that on default of payment of the mortgage money on a certain date sale shall become absolute, or on condition that on such payment being made the sale shall become void; or
on condition that on such payment being made the buyer shall transfer the property to the seller,
the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale
4. This clause, therefore, lays down that there is an ostensible sale at the time of execution of the mortgage by conditional sale and that sale becomes obsolute in default of payment of the mortgage-money. What remains with the mortgagor is a right of redemption and by a decree of foreclosure that right of redemption is lost. There is no doubt whatever that the mortgage by conditional sale is a voluntary alienation. The question before us is whether there is anything in the fact that the right of redemption is subsequently lost by the decree of foreclosure to prevent that voluntary alienation giving rise to a right of exproprietary tenancy under Section 10, Act 2 of 1901. Having given the matter our earnest consideration, we come to the conclusion in the negative and we consider that in the case of a mortgage by conditional sale the right of) exproprietary tenancy arose in the plaintiffs. Under Section 34, Land Revenue Act, when the defendants obtained possession of the proprietary share in the mahal, i.e., after their decree for foreclosure and after they obtained possession from the civil Court, it was for the defendants to apply to the Tahsildar for entry in the khewat, and under Section 35 it was for the defendants to apply to the Collector in that proceeding for specification of the exproprietary rent of the plaintiffs. The fact that the defendants have not made the application to the Collector to fix exproprietary rent for the plaintiffs, is not a matter which would prevent the plaintiffs being in possession as exproprietary tenants. As found by the lower appellate Court the plaintiffs have all along been in possession of the holding in question through the defendants as their sub-tenants.
5. Accordingly we consider that the finding of the lower appellate Court is correct, and we dismiss this appeal with costs.