Judgement Appeal from a decree of the above Court (Aug. 9, 1900) affirming a decree of the District Judge of Sitapur (Dec. 14, 1897) which reversed a decree of the Subordinate Judge of Sitapur (Aug. 8, 1896). The question decided was whether the appellant had a right to redeem a mortgage executed by his father on August 12, 1851, or whether the right to redeem was barred in consequence of previous litigation (which is sufficiently detailed in the judgment of their Lordships) between the appellants father and brother, and the respondents and their predecessor in the tie. As stated in the said judgment and the above note, there were three suits for redemption prior to the one in which the appeal arose. In the first a decree was passed, but events during the mutiny rendered it in fructuous. The second was instituted in February, 1862, and in December of that year was finally disposed of by the Chief Commissioners ruling to this effect— " The settlement with Murli Manohar Talukdar (i.e. the mortgagee) has already been sanctioned by his Excellency the Governor-General, and taluqdari sanad has also been granted him; under these circumstances, no interference can be made in the case, and that had the Chief Commissioner been aware of the fact of Murli Manohar being a taluqdar and sanad holder at the time when he passed his order dated January, 1861, he would not have ordered the appellant to make a petition for redemption of villages." By an order dated August 15, 1865, made by the Governor- General in Council, mortgage transactions were excluded from the operation of taluqdari sanads. Subsequently Act XIII. of 1866 was passed, by s. 2 of which it was enacted " When a mortgagee shall, under or by virtue of a mortgage executed before the said day" (meaning February 13, 1844), "have obtained possession of any land comprised in his mortgage, the mortgagor or any person claiming through him shall not bring a suit in any Civil Court or any Revenue Court in the said province to redeem the mortgage of such land, any subsequent acknowledgment of the title or right to redeem of the mortgagor, or of any person claiming through him notwithstanding. Provided that any suit for the redemption of land which may have been rejected or dismissed upon the ground that the suit was barred under some rule of limitation in force, or supposed to be in force, in the said province, may be revived and heard as aforesaid, if the mortgage shall have been executed on or after the said day " (meaning February 13, 1844); and s. 6 of Act I. of 1869 of the same Council enacted " Nothing in sections three, four and five, or in the said orders, or in any sanad, shall be deemed to bar a suit for redemption." " (a) Where the instrument of mortgage was executed on or after the thirteenth day of February, 1844, and fixed no term within which the property comprised therein might be redeemed, or " {b) Where the instrument of mortgage fixed a term within which the property comprised therein might be redeemed, and such term did not expire before the thirteenth day of February, 1856." In consequence of this legislation a third suit for redemption was instituted by the son of the mortgagor, Law. Rep. 32 Ind. App. 229 ( 1904- 1905) Chaudhri Ahmad Bakhsh V. Seth Raghubar Dayal 101 alleging that his father had paid off the mortgage money. It was finally disposed of by Mr. Capper, the Judicial Commissioner, on September 21, 1870, who, reversing decrees for redemption by the Courts below, ruled as follows " It is abundantly shewn that the principal sum was in consequence paid into court, and consequently the mortgage lien then and there ceased and determined. There is nothing now left to redeem. The title of the mortgagee rests on his sanad and his sanad only, and whether or not the Financial Commissioner can deal with this as a hard case, it is clear that the Judicial Commissioner has no such power. I am forced by the law to decree this appeal." The appellant having been a minor during the third suit, and claiming that he was unrepresented at any of its stages and was not bound by the decision, and having on partition been allotted a seven-sixteenths share in the mortgaged villages, brought the present suit to redeem. The Subordinate Judge decreed in his favour. The District Judge reversed his decree, considering himself bound to follow Mr. Cappers decision. The Court of the Judicial Commissioner affirmed this decree. The Subordinate Judge decreed in his favour. The District Judge reversed his decree, considering himself bound to follow Mr. Cappers decision. The Court of the Judicial Commissioner affirmed this decree. The Court said that, " in order to redeem a mortgage to which the rules in force in Oudh in 1857 were applicable, something more was necessary than payment, tender, or deposit in court of the mortgage money," and then dealt with the question of res judicata as follows " The real point is whether Husain Bakhsh, having paid the money and being in a position to obtain possession of the mortgaged property, could, instead of seeking to do so, have brought a second suit to redeem the mortgage. If he could not, I think the present suit is barred. Now I think that Husain Bakhsh could not have brought a second suit to redeem the mortgage. Having paid the money into court, he was in the same position as if he had merely sued for and obtained a decree for possession of the property on the ground that the mortgage debt had been paid out of the usufruct of the property. I think that there can be no doubt that if a usufructuary mortgagor sue for and obtain a decree for possession of the mortgaged property, on the ground that the mortgage money has been paid out of the usufruct, he must obtain possession of the mortgaged property in execution of his decree, and that he cannot neglect to execute his decree and bring a suit for possession of the property upon the same ground. The second suit would be barred by ss. 13 and 244 Civil Procedure Code.....Husain Bakhsh had two courses open to him—namely, either to apply to have the appeal decided or to apply for execution of his decree. As to the former contention, so long as the decree of the Commissioner was not reversed, the payment made by Husain Bakhsh was a good and sufficient satisfaction of the mortgage debt. To this day the decree of the Commissioner stands unreversed. I think that it must be held that the payment made by Husain Bakhsh was one of the amount due on the mortgage.....Husain Bakhsh was .... able to apply for execution of his decree, and any delay having its origin in the rebellion would no doubt have been excused. To this day the decree of the Commissioner stands unreversed. I think that it must be held that the payment made by Husain Bakhsh was one of the amount due on the mortgage.....Husain Bakhsh was .... able to apply for execution of his decree, and any delay having its origin in the rebellion would no doubt have been excused. For these reasons it seems to me that the present suit is barred by ss. 13 and 244 Civil Procedure Code." Asquith, K.C., and W. C. Bonnerjee, for the appellant, contended that the suit was not barred and ought to have been decreed. They contended that Mr. Cappers decision was not res judicata and was not correct. With regard to the former point, the appellant was not a party to the suit, and s. 13 of the Civil Procedure Code, therefore, did not apply. With regard to the second, the Chief Commissioner on January 8, 1861, by an order the terms of which are set out in their Lordships judgment and which was binding on the parties, gave the mortgagor a right to sue to redeem in spite or in con-sequence of th abortive proceedings in the suit of 1856. There had been no acceptance of the money paid into court, which was objected to as insufficient in amount. An appeal was pending as to the amount, and the money was at the risk of the mortgagor, and it was oppressive to hold that by the incident of having paid the principal the lien ceased, so that he lost both his money and also the right to redeem. The most favourable view to the mortgagee was that he was still unpaid, and in that case the mortgagor retained the right to redeem, even though it involved payment over again of the amount due. It was contended that s. 244 had no application to the case under the exceptional circumstances. The petitions made by the mortgagor in the first suit were only unsuccessful because the Chief Commissioner on January 8, 1861, directed a fresh suit. He was right in so doing, and the parties were Law. Rep. 32 Ind. App. 229 ( 1904- 1905) Chaudhri Ahmad Bakhsh V. Seth Raghubar Dayal 102 bound thereby. There was no decree which could be executed. Payment had been made thereunder of money which owing to public confusion had never reached the mortgagees hands. He was right in so doing, and the parties were Law. Rep. 32 Ind. App. 229 ( 1904- 1905) Chaudhri Ahmad Bakhsh V. Seth Raghubar Dayal 102 bound thereby. There was no decree which could be executed. Payment had been made thereunder of money which owing to public confusion had never reached the mortgagees hands. The mortgagor could not be decreed in that suit to pay over again, The mortgagee could not be decreed to reconvey before he had been paid. The suit was at an end, without the cause of action having been disposed of. There was no alternative but to institute a fresh suit as the Chief Commissioner directed in 1861, and under the special circumstances of the case it was not barred by either s. 13 or s. 244, or otherwise. As to limitation, the First Court rightly decided that the suit was not barred, as no time was fixed in the mortgage for redemption see Act XV. of 1877, amended by Act XII. of 1879, Sched. II., arts. 147, 148. Haldane, K.C. and De Gruyther, for the respondents, con-tended that the view taken by Mr. Capper was correct, and that the mortgage lien was extinguished by the proceedings in 1857 before the mutiny, by the payment of the money into court. The right to redeem itself was extinguished ; otherwise it was barred by ss. 13 and 244. Under the former section it was barred by the two judgments in the first suit, one before the mutiny and the other on January 12, 1862, and also by the judgment in the third suit, i.e., on September 21, 1870, which was a suit to which one of the mortgagors heirs was a party, and by which the other heir, namely, the appellant in this case, was bound see Vasudev v. Krishnaji. (( 1895) Ind. L. R. 20 Bomb.534.) There is no analogy to the English cases in which reconveyance is necessary. The whole question here was whether the mortgage lien still subsisted, or whether it had by virtue of the proceedings in 1857 ceased to exist. See Dondh Bahadur Rai v. Tek Narain Rai (( 1899) Ind. L. R. 21 Allan. 251.) as to a mortgage being extinguished in respect of a cause of action thereon by being merged in a decree for redemption. See Dondh Bahadur Rai v. Tek Narain Rai (( 1899) Ind. L. R. 21 Allan. 251.) as to a mortgage being extinguished in respect of a cause of action thereon by being merged in a decree for redemption. After decree the relations of the parties are regulated thereby and not by the mortgage, and the sole remedy is in execution, and is gone if execution is barred. They referred to Act XIII. of 1866, Act I. of 1869, s. 6, and the letter of October 10, 1859, as to what rights are acquired by the grantee of a sanad. They further contended that the mortgage was by virtue of the decree in the first suit merged in that decree, and that the only rights the mortgagor possessed prior to the con- fiscation were under that decree and not under the mortgage. Consequently the only remedy possessed by him was to execute that decree, treating as he was entitled to do the appeal there-from as abandoned, or applying to have it dismissed. There was no right to bring a fresh snit on a mortgage which, even if the lien was not extinguished, had ceased to exist by reason of its merger in a decree of Court see Hari Ravji Chiplunkar v. Shapurji Hormusji (( 1886) L. R. 13 Ind. Ap. 66.) and Thukrain Sookraj Koowar v. Government. (( 1871) 14 Moores Ind. Ap. Ca. 112.) [Lord Davey referred to Khiarajmal v. Daim. (Ante, p. 23.)] Asquith, K.C., replied. The judgment of their Lordships was delivered by LORD DAVEY. This appeal is the final stage in a litigation which, in one form or another, has been going on since the year 1856. Large costs have been incurred, and, as regards one litigant not now before the Court, injustice has perhaps been done to him in the course of the litigation ; but the real question, when properly considered, appears to their Lordships to be comparatively a simple one. The origin of the litigation was a usufructuary mortgage bearing a native date corresponding to August 16, 1851, made by one Husain Bakhsh of a taluqa comprising seven villages, situate in the then kingdom of Oudh, to one Raghuber Dyal, son of Seth Murli Manohar (who was the real lender), to secure Rs.4000 and interest at the rate of Rs.3 2a. per cent. per mensem, equivalent to 37J per cent. per annum. per cent. per mensem, equivalent to 37J per cent. per annum. The mortgage was made redeemable at the close of the Pasli year, and it was provided that on being redeemed the mortgagee should not account for the rents and profits of the villages possession of which it was stated had been given to him. Law. Rep. 32 Ind. App. 229 ( 1904- 1905) Chaudhri Ahmad Bakhsh V. Seth Raghubar Dayal 103 The annexation of Oudh by the British Government took place on February 13, 1856. Shortly afterwards Husain Bakhsh commenced a suit in the Court of the Deputy Com-missioner of Sitapur against Murli Manohar for the redemption of the mortgage, and a decree was made therein by the Assistant Commissioner, against which both parties appealed. On the appeal and cross-appeal, Mr. Christian, the Commissioner, delivered a judgment dated April 21, 1857, in which he stated his opinion that the then plaintiff Husain Bakhsh should pay the principal sum, namely, Rs. 4000 only, and ordered that the file of the case be forwarded to the Deputy Commissioner with a request that Husain Bakhsh should be put in possession of the entire taluqa on Asarh 1, 1264 Falsi, corresponding to June 8, 1857, provided that he deposited Rs.4000 in the Government Treasury before that date. No record of any decree made pursuant to this judgment is produced or is in existence; but it is admitted by all parties that Husain Bakhsh paid the Rs.4000 into the Government Treasury. He did not however obtain possession of the mortgaged villages, the reason no doubt being that Murli Manohar had given notice of an appeal from Mr. Christians judgment, claiming interest as well as principal. On June 3, 1857, the mutiny extended to Sitapur, and the records of the Court are said to have been destroyed and the Treasury was looted. There is some rather shadowy evidence that Husain Bakhsh during the disturbances took forcible possession of the villages and was in his turn ousted by Murli Manohar. But, however this may be, Murli Manohar was in undisturbed possession at the date of Lord Cannings Proclamation of March, 1858. He did not, on the restoration of order, proceed with his appeal from Mr. Christians judgment, and of course never received payment of the Rs.4000. But, however this may be, Murli Manohar was in undisturbed possession at the date of Lord Cannings Proclamation of March, 1858. He did not, on the restoration of order, proceed with his appeal from Mr. Christians judgment, and of course never received payment of the Rs.4000. At the second summary settlement of Oudh, Murli Manohar procured settlement of the villages in question to be made with him, and his taluqdari title thereto was confirmed by sanad. Husain Bakhsh in the meantime presented three petitions to the Collectors Court asking that the settlement of the villages be made with him. The final answer to these applications was contained in a letter from the Secretary of the Chief Commissioner of Oudh to the Commissioner of Khairahad, dated January 8, 1861, in the following terms — " (2.) It is certain that Husain Bakhsh deposited Rs.4000 in the Treasury by order of Court to redeem the villages mort- gaged to Murli Manohar, and had not the rebellion broken out he would have been restored to possession. " (3.) But after the rebellion broke out the money was plundered, and on reoccupation of the province Murli Manohar was settled with. " (4.) Chaudhri Husain Bakhsh now seeks to redeem the mortgage and recover possession on the ground of his having paid the Rs. 4000 by order of the Court. " (5.) Colonel Barrow rejected his claim on the ground that he had plundered the Biswan Tehsil at the commencement of the rebellion; but the Chief Commissioner must observe that this would be no sufficient reason for denying him legal redress, as his rebellion is pardoned by the amnesty, and no act committed by him during the rebellion can be charged against him in bar of justice. " (6.) But Murli Manohar never received the Rs.4000 redemption money; consequently he cannot be made to surrender the village. If Chaudhri Husain Bakhsh is prepared to sue in ordinary course de novo for redemption of mortgage and to pay the money due to the mortgagee, as may be awarded by Court, supposing always his claim admissible under statute of limitation, his suit can be heard in the Court. “ (7.) Under the rule laid down by Government he might ask for refund of his deposit; but this would be an indulgence, and his conduct renders him undeserving of any." Law. Rep. 32 Ind. App. “ (7.) Under the rule laid down by Government he might ask for refund of his deposit; but this would be an indulgence, and his conduct renders him undeserving of any." Law. Rep. 32 Ind. App. 229 ( 1904- 1905) Chaudhri Ahmad Bakhsh V. Seth Raghubar Dayal 104 The meaning of this order or direction is plain enough. The Government refused either to refund the Rs.4000 or to assume the responsibility of having received it on behalf of the mortgagee, and said to Husain Bakhsh in effect, " We cannot dispossess Murli Manohar in your favour, but you may bring a fresh action and pay your mortgage money over again." Whether the Commissioner, acting in an administrative capacity, had any power to give such order or direction is another question, which their Lordships are not now called upon to answer. The important point for the present purpose is the disclaimer by the Government of all responsibility for the deposit. Acting on what he no doubt assumed to be the Commissioners direction or permission, Husain Bakhsh on February 24, 1862, commenced a fresh suit for redemption in the Court of the Deputy Commissioner of Sitapur. His suit, however, was dismissed on the ground that the taluqdari settlement could not be reopened, and the sanad had given Murli Manohar a new and absolute title. And this decision was confirmed by the Commissioner and the Chief Commissioner on successive appeals. During the pendency of this suit Husain Bakhsh died leaving two sons by one wife, namely, Muhammad Bakhsh and Ahmad Bakhsh, the present appellant (then a minor), and a third son by another wife, who was otherwise provided for by his fathers will, and had no interest in the equity of redemption of the mortgaged villages. By Act No. XIII. of 1866 and Act No. I. of 1869, relief was given to mortgagors of lands which were in the possession of mortgagees at the time of the mutiny under certain conditions. By s. 6 of the latter Act, it was provided that nothing in ss. 3, 4, and 5, or in certain orders, or in any sanad, should be deemed to bar a suit for redemption. By s. 6 of the latter Act, it was provided that nothing in ss. 3, 4, and 5, or in certain orders, or in any sanad, should be deemed to bar a suit for redemption. It was not, and is not, disputed that the, heirs of Husain Bakhsh were entitled to the benefit of this enactment if his true position, but for the confiscation, was that of a mortgagor with a right of redemption. On March 27, 1869, Muhammad Bakhsh commenced a suit in the Court of the Deputy Commissioner of Sitapur against the representatives of Murli Manohar (who was also dead) to be put in possession of the seven villages comprised in the mortgage which he alleged had been redeemed by the deposit of the Es.4000 in the Treasury under Mr. Christians judgment of April 21, 1857. The second of the issues settled for determination by the Court raisd the question whether the suit was a suit for redemption within the meaning of s. 6 of Act I. of 1869, and is the only issue to which attention need be paid. By his judgment dated October 28, 1869, the Extra Assistant Commissioner decided all the issues in favour of the plaintiff. On the second issue he held that the mere deposit of money before the rebellion, and the unlawful possession of Husain Bakhsh during that period, could not extinguish the mortgage, and that the possession of Murli Manohar being by virtue of the mortgage for the redemption of which. the snit was preferred, the case was cognizable under s. 6 of Act I. of 1869. This was affirmed by the Commissioner, but on special appeal to the Judicial Commissioner of Oudh it was reversed, and by a decree of that Court dated September 21, 1870, the suit of Muhammad Bakhsh was dismissed with costs. The ground stated by Mr. Capper, the Judicial Commissioner, for his judgment was that by payment of the mortgage money into court the mortgage lien then and there ceased and determined, and there was nothing then left to redeem. Consequently he considered himself forced, though with evident reluctance, to decree the appeal. There was an appeal by Muhammad Bakhsh to the Queen in Council, but it was not proceeded with, and was dismissed for want of prosecution. Consequently he considered himself forced, though with evident reluctance, to decree the appeal. There was an appeal by Muhammad Bakhsh to the Queen in Council, but it was not proceeded with, and was dismissed for want of prosecution. On July 7, 1879, the present appellant, having attained his majority, came to a partition of the general estate of Husain Bakhsh, including the claim to redeem the villages in question, with Muhammad Bakhsh, under which the appellant became entitled to a seven annas share. This partition was after Law. Rep. 32 Ind. App. 229 ( 1904- 1905) Chaudhri Ahmad Bakhsh V. Seth Raghubar Dayal 105 some litigation confirmed by the Commissioner. On May 3, 1895, the appellant commenced the present suit against the respondents, being the persons in possession of the seven villages and claiming title thereto under Murli Manohar, for redemption of the property on payment of Bs.4000 mortgage money, together with any interest the Court might think proper to award. The issues settled by the Subordinate Judge of Sitapur (as amended) were, so far as material for the present appeal, as follows — "1. Whether by the following judgments the plaintiffs claim is barred under s. 13, Code of Civil Procedure (a) lst judgment (In re Husain Bakhsh) passed before the Mutiny," i.e., Mr. Christians judgment; " (b) 2nd judgment (In re Husain Bakhsh) dated January 12, 1862," meaning apparently the judgment of June 12, 1862, in the record; " (c) 3rd judgment, In re Muhammad Bahhsh1 (meaning Mr. Cappers judgment of September 21, 1870). " 2. Whether the plaintiffs claim is barred by limitation ? " 3. Whether the plaintiff is entitled to get his own share redeemed and also that of his brother Muhammad Bakhsh, whose claim has already been dismissed ? “ 4. Whether the plaintiff is entitled to get his seven annas share redeemed ? " 7. What amount of interest the defendants are entitled to?" The Subordinate Judge held, on the first issue, that the suit was not barred by s. 13 of the Civil Procedure Code; on the second issue, that it was not barred by limitation ; on the third and fourth issues, that the appellant was entitled to redeem his seven annas share of the mortgaged property; and on the seventh issue, that the respondents were entitled, in addition to the profits, to interest at one rupee per cent. from February 13, 1856, to the date of the institution of the suit. And by his decree dated August 8, 1896, it was ordered that upon appellant paying to the respondents or into court on the last day of April, 1897, the sum of Rs.13,078.11, the respond ents should transfer to the appellant a seven annas share of the mortgaged property. This decree was reversed by the decree of the District Judge of Sitapur dated December 14, 1897. The District Judge held that, without deciding whether Mr. Cappers judgment of September 21, 1870, was res judicata against the appellant, the Court was bound by it as a precedent, and that in accordance therewith the relation of mortgagor and mortgagee was extinguished in 1856- 1857. The decree of the District Judge was affirmed on second appeal by the Court of the Judicial Commissioner, and it is from the decree of that Court dated August 9, 1900, that the present appeal is brought. The judgment of the Court was delivered by Mr. Spankie, the Additional Judicial Commissioner. The learned judge said that the real point was whether Husain Bakhsh, having paid the money under Mr. Christians decree of April 21, 1857, and being in a position to obtain possession of the mortgaged property, could, instead of seeking to do so, have brought a second suit to redeem the mortgage; and he held that Husain Bakhsh had two courses open to him— namely, either to apply to have the appeal (of Murli Manohar against Mr. Christians decree) decided, or to apply for execution of his decree; and Husain Bakhsh having done neither one nor the other, the present suit was barred by ss. 13 and 244 of the Civil Procedure Code. At their Lordships bar two points only were argued by the counsel for the respondent. It was contended, first, that the present appellant was barred by the decree of September 21, 1870, in the suit of Muhammad Bakhsh as res judicata between the parties to the present suit under s. 13 of the Civil Law. Rep. 32 Ind. App. At their Lordships bar two points only were argued by the counsel for the respondent. It was contended, first, that the present appellant was barred by the decree of September 21, 1870, in the suit of Muhammad Bakhsh as res judicata between the parties to the present suit under s. 13 of the Civil Law. Rep. 32 Ind. App. 229 ( 1904- 1905) Chaudhri Ahmad Bakhsh V. Seth Raghubar Dayal 106 Procedure Code; and, secondly, that Husain Bakhshs proper and only course was to apply for execution of his decree (treating the appeal from it as abandoned) as held by the Assistant Judicial Commissioner, or (which is the same point in another form) that this is not truly a suit for redemption within the meaning of s. 6 of Act I. of 1869 as held by Mr. Capper. On the first point no opinion was expressed either in the Court of the District Judge or in the Court of the Judicial Commissioner. Their Lordships agree with the decision of the Subordinate Judge that the present suit is not barred by the decree in Muhammad Bakhshs suit, and with the reasons upon which that decision was founded. The appellant was then a minor, and Muhammad Bakhsh was not his guardian, either natural or appointed; nor did the suit purport to be instituted on behalf of the minor, who was not in any form a party on the record. Their Lordships were referred to evidence on behalf of the respondents, which was shortly to the following effect (1.) That Husain Bakhsh in his lifetime applied for partition of the property between Muhammad Bakhsh and the appellant in the proportion of 9 annas to 7 annas, and appointment of Muhammad Bakhsh as lambardar, and the appellant as pattidar; (2.) that an agreement was come to by which the mother of both brothers and natural guardian of the appellant directed that Muhammad Bakhsh should manage the estate and allow the appellant 7 annas of the profits, and that Muhammad Bakhsh did in fact manage the estate and was what was called the head of the family; (3.) that the estate was under the nominal management of the Court of Wards, and the officer of that Court was privy to the institution of the suit. But this evidence at most proves nothing more than an intention that the suit should be for the minors benefit, and their Lordships think that such an intention would not support the plea of res judicata. To maintain that plea it must appear from inspection of the record that the person whose interest it is sought to bind was in some way a party to the suit. This is not the case of a Hindu joint family, to which other considerations would apply, and the mere fact that redemption was sought of the entire property proves nothing. A mortgagor of an undivided share may redeem the entirety—at any rate, if the mortgagee does not object—and may be compelled to do so if required by the mortgagee. On the second point also their Lordships agree with the Subordinate Judge. In the first place, they observe that during the pendency of Murli Manohars appeal, by which he claimed interest in addition to the Rs.4000, an order could not properly have been made by the Court putting Husain Bakhsh in possession of the mortgaged property. He was not, therefore, entitled as of right to possession when the mutiny broke out. After the Rs.4000 had been lost by the looting of the Treasury, the Government definitely refused either to refund the amount to Husain Bakhsh, or to hold themselves responsible for payment of it to the mortgagee. The Court could not have executed the decree by ordering a retransfer of the mortgaged property to Husain Bakhsh by the mortgagee without at the same time ordering payment to the latter of the sum paid into the Treasury, and placed under the control of the Court. But this by the vis major of the mutiny, the Court was unable to do. And it would have been of no service to Husain Bakhsh to apply to have Murli Manohars appeal decided, for whether it was decided for or against the appellant, the same difficulty would have arisen—that the Court could not dispossess the mortgagee without payment to him of his principal money and any interest which might be awarded to him. There was nothing, therefore, which the Court could execute. They could not order Husain Bakhsh to pay over again in a proceeding for execution of the existing decree, and they could not order the mortgagee to retransfer the estate without receiving the amount due to him. There was nothing, therefore, which the Court could execute. They could not order Husain Bakhsh to pay over again in a proceeding for execution of the existing decree, and they could not order the mortgagee to retransfer the estate without receiving the amount due to him. The question whether payment into court under Mr. Christians decree would or would not (if that were all) have extinguished the lien seems under the circumstances somewhat academic, and their Lordships observe that they have not in fact got the exact terms of the decree before them, but only those of the judgment on which the decree would be founded. The fallacy of the respondents contention is to apply rules made for the conduct of judicial business in ordinary course to exceptional circumstances such as those occasioned by the mutiny and rebellion in Oudh. As Mr. Law. Rep. 32 Ind. App. 229 ( 1904- 1905) Chaudhri Ahmad Bakhsh V. Seth Raghubar Dayal 107 Asquith justly observed, the respondents contention when examined is that their predecessor was a bare trustee of the estate granted to him by the sanad for the appellants ancestor; and indeed their Lordships understood Mr. De Gruyther to have argued that the appellant might on coming of age have sued for and recovered his property without further payment. Their Lordships are of opinion that a new decree, which could only be regularly made in a fresh suit, was in the circumstances required in order to give effect to the rights of the parties and do justice between them, and that Muhammad Bakhshs suit ought to have succeeded, and the present appellant is entitled to a decree in this suit. No objection was made, or perhaps could be made, either by the appellant or by the respondents to the terms of the decree made by the Subordinate Judge. No objection was made, or perhaps could be made, either by the appellant or by the respondents to the terms of the decree made by the Subordinate Judge. Their Lordships will, therefore, humbly advise His Majesty that the decrees of the District Judge dated December 14, 1897, and of the Court of the Judicial Commissioner dated August 9, 1900, should both be discharged, and the decree of the Subordinate Judge dated August 8, 1896, should be restored with this variation—that the last day of April, 1906, be substituted for the last day of April, 1897 (being, the day therein fixed for redemption), and that the respondents should pay to the appellant the costs of the appeals to the District Judge and the Court of the Judicial Commissioner. The respondents will also pay the costs of this appeal.