1. At the time of the auction sale, the plaintiff was the usufructuary mortgagee in possession, and the land was brought to sale in satisfaction of a decree upon a prior hypothecation. The equity of redemption was purchased by 1st defendant, who at the time was plaintiff's paid agent, and it is found that in the purchase 1st defendant acted as plaintiff's agent and that plaintiff supplied the money for the purchase. The plaintiff remained in possession through his tenants. Being usufructuary mortgagee the 1st defendant could not have disturbed him without redeeming the mortgage even if he (1st defendant) had purchased the equity of redemption oh his account. But it is found that he agreed to execute a conveyance to the plaintiff, allowed plaintiff to take possession of the sale certificate and delivery order and that he was at the time plaintiff's agent.
2. We think the case falls within the principles laid down in Monappa v. Surappa, I. L. R. (1886) M. 234 and Sankunni Nair v. Narayanan Nani-budri I. L. R. (1893) M. 282 and that 17 Code of Civil Procedure is not a bar to the suit.
3. The second appeal is dismissed with costs.