JUDGMENT 1. The facts of this case are shortly these : The Plaintiff obtained a mortgage of certain properties from Defendants Nos. 2, 3 and 4. He obtained a decree upon his mortgage, but before he could bring the mortgaged properties to sale, they were sold, on the 15th February 1900, in execution of a rent decree obtained by the landlord, the Defendant No. 1, under the Bengal Tenancy Act, with express power to the purchaser to avoid all incumbrances. Subsequently, the landlord's claim was satisfied out of the purchase money, and a certain amount was left in the hands of the Court as surplus sale proceeds. The landlord subsequently applied for and obtained thes surplus sale proceeds by way of satisfaction of some other decrees that he had against the mortgagors;and therupon the present suit was brought by the plaintiff, the mortgagee,for the purpose of recovering the same from the landlord Defendant, it being stated in the plaint that, by reason of the sale of the mortgaged properties in execution of the rent decree, as free from all incumbrances, the Plaintiff's mortgage lien had attached to the surplus sale proceeds, and that, therefore, he was entitled to recover the same. The claim of the Plaintiff was denied by the landlord Defendant and the suit has been dismissed by both the Courts below upon the simple ground that the dur-putni tenure which was mortgaged to the Plaintiff and which was sold in execution of the rent decree obtained by the zemindar not having been sold free from incumbrance of the mortgage of the Plaintiff, and the purchaser not having avoided the mortgage in question in the way provided by the Bengal Tenancy Act, sec. 73 of the Transfer of Property Act, on which the Plaintiff relied in support of his claim, could not apply. 2. 73 of the Transfer of Property Act, on which the Plaintiff relied in support of his claim, could not apply. 2. Sec. 73 of the Transfer of Property Act runs as follows:--" Where mortgaged property is sold through failure to pay arrears of revenue or rent due in respect thereof, the mortgagee has a charge on the surplus, if any, of the proceeds, after payment thereout of the said arrears, for the amount remaining due on the mortgage, unless the sale has been occasioned by some default on his part." The terms of this section would seem to be explicit namely that whena mortgaged property is sold for revenue or rent not through any default on the part of the mortgagee the mortgage lien is transferred to the surplus sale proceeds This section may however be taken to contemplate the case of a sale where by reason of the sale for revenue or rent, as the case may be, the lien is destroyed; but it may equally apply to a case where the lien is in jeopardy, and it is in the power of the mortgagor to annul it, if he chooses. In such a case, if a mortgagee desires to abandon his mortgage lien (as we understand he does practically in the present case), and asks that it be transferred to the surplus sale proceeds, there is nothing, so far as we can see, to prevent him from doing so. In the present case, as already stated, the rent sale was a sale under the Bengal Tenancy Act with express power to the purchaser to annul all incumbrances; and when the landlord applied for and obtained the surplus sale proceeds in execution of some other decrees, and the Plaintiff.' thereupon brought the preseut suit, it was still in the power of the purchaser to annul the incumbrance, the period of one year allowed by sec. 167 of the Bengal Tenancy Act, not having expired at the time. It is not a case where, by reason of neglect on the part of the purchaser to annul the incumbrance within the period prescribed by the Bengal Tenancy Act, the mortgage lien must be taken to be good and unimpaired, but it is a case where the lien is in jeopardy and is liable to be destroyed by the purchaser, if he so pleases. And in such a case, we are of opinion that the mortgagee may well abandon his lien upon the mortaged property, and ask to realise his demands from the surplus proceeds. To hold otherwise might result in irreparable injury to the mortgagee for somebody else might in the meantime take the money away and the mortgagee might not be able afterwards to get it back from him. 3. Our attention has, however, been called to two cases decided by this Court. One of them is to be found in Prem Chand Pal v. Purnima Dasi I. L. R. 15 Cal. 546 (1888). It would appear that the sale in that ease was a sale for revenue under sec. 54 of the Revenue Sale Law and, therefore, subject to all incumbrances at the time of sale. And it was held that sec. 73 of the Transfer of Property Act did not deprive the mortgagee of his lien over the property, and confine him to proceedings against the surplus sale proceeds. That case has really no application to the present one. The other case is in Beni Prosad v. Rewat Lall I. L. R, 24 Cal. 746 (1897). It would appear from the judgment of the learned Judges who had to deal with "It that the question whether the sale for rent was a sale under sec. 161 and the following sections of the Bengal Tenancy Act was not determined; but notwithstanding this the Court, assuming that, it was such a sale, made certain observations in the course of their judgment. Those observations, however, had reference to the broad contention that was raised by the learned counsel for the Appellant that, under sec. 73 of the Transfer of Property Act, the rights of the mortgagor in the mortgaged property were by virtue of the sale transferred to the residue of the sale proceeds after paying the amount for which the property was sold. This contention was negatived by the learned Judges; and they held that the mortgage lien subsisted and had not been avoided by the purchaser, and that therefore the argument raised by the learned counsel could not be supported. 4. We are of opinion that this case is really no authority having regard to the facts of this particular case, We think, upon consideration, that in the circumstances of the case, sec. 4. We are of opinion that this case is really no authority having regard to the facts of this particular case, We think, upon consideration, that in the circumstances of the case, sec. 73 of the Transfer of Property Act is no bar to the maintenance of the present suit and that the Plaintiff, having abandoned his lien upon the mortgaged properties, is entitled to recover his dues from the surplus sale proceeds. 5. We however observe that there were various other pleas raised against the action of the Plaintiff. Those objections have not been determined by the Court below. The case must therefore be sent back to the Court of first instance with directions that those other pleas be tried out. Costs will abide the result. The judgment that we have just delivered will equally apply to the ether appeal No. 1582.