JUDGMENT : Banerji, J. The decree of the lower appellate court cannot be supported. The plaintiff alleging himself to be a usufructuary mortgagee from one Sheo Prasad, brought this suit for possession of the mortgaged property, and in the alternative for the mortgage-money. He joined as a defendant to the suit, one Palu Patak, who had after the date of the mortgage set up by the plaintiff purchased at auction the property comprised in the mortgage in execution of a simple decree for money obtained against Sheo Prasad. Palu Patak alone defended the suit, mainly on the ground that the mortgage put forward by the plaintiff was fictitious. The court of first instance decreed the claim. 2. The lower appellate court has dismissed the suit upon the ground that the plaintiff had not impleaded in the suit the two sons of Sheo Prasad, who, the court finds, are joint with him. That was no reason for dismissing the suit. In the first place the court does not find that the property is the ancestral property of Sheo Prasad, and that his sons have any interest in it. In the next place this is not a suit under chapter IV of the Transfer of Property Act, and therefore section 85 of that Act has no application to it. The court below was clearly wrong in dismissing the suit. I allow the appeal, and setting aside the decree of the court below, remand the case to that court under section 562 of the Code of Civil Procedure for trial upon the merits. Costs here and hitherto will follow the event.