Judgement Appeal (No. 53 of 1919) from a judgment and decree of the Court of the Judicial Commissioner (September 5, 1917) reversing the decree of the District Judge of Hoshangabad (August 25, 1915). In 1891 the agent for the Court of Wards, being in charge of the estate of the appellants under Act XVII. of 1885, executed a mortgage of certain mauzas, the deed stating that the mauzas " together with all actual and reputed rights, easements and appurtenances to the same and all cultivated and uncultivated land, groves, abadi, sir, rents and profits such as jalker, banker and by whatever name the same may be styled or known, have been and are hereby hypothecated by way of mortgage to the mortgagees." In 1904 the mortgagees brought a suit in the District Court on the mortgage and on April 4, 1906, obtained a preliminary mortgage decree for over two lachs. The mortgagors (the present appellants) appealed to the Court of the Judicial Commissioners on the ground (inter alia) "that the lower Court erred in holding that the plaintiffs would be entitled under the terms of the mortgage to sell the cultivating rights in sir." The appellate Court having decided against the other grounds of appeal said with regard to that above set out " Both sides agree that it would be premature to decide what the position of a purchaser under decree absolute for sale will be in respect of the sir. In the list of the mortgaged property on the back of the lower Courts decree for the words with cultivating rights in sir, etc., the following will be substituted With all actual and reputed rights as detailed in the mortgage." Subject to the above modification in the decree the appeal was dismissed. A further appeal to the Privy Council was dismissed on April 8, 1913 (see Gulab Singh v. Seth Gokuldas. (( 1913) L. R. 401. A further appeal to the Privy Council was dismissed on April 8, 1913 (see Gulab Singh v. Seth Gokuldas. (( 1913) L. R. 401. A. 117.)) Meanwhile on August 25, 1908, a final decree for sale was made and the property was ordered (under Form C) to be sold "with all actual and reputed rights as detailed in the mortgage." Upon the decree being transmitted to the Collector for execution, he raised a question whether the terms of the order were sufficiently explicit; the matter was brought before the Judicial Commissioners, who said that "for the purposes of a sale the description given was full and sufficient; in any case no legal entry of the words with cultivating rights in sir-lands or without cultivating rights in sir-lands could have been made. Were the matter open we should have said that the words all actual and reputed rights in the sir-lands, included the right to cultivate the sir-lands. But upon the agreement of the parties, the Court which passed the decree expressly decided and decreed that there should be no interpretation of these general words between the parties. Form C, when drawn up in obedience to a decree for sale, can only follow the description of the property contained in the decree." They remanded the case for the disposal of the execution proceedings. Further difficulties as to the form of the sale decree were raised by the Collector. Eventually on July 23, 1913, the Chief Commissioner wrote as follows to the Collector “as the Civil Courts decree extends only to the sale of proprietary rights in sir, the Collector cannot sell the cultivating rights or put the purchaser in physical possession of the sir land but only of the proprietary rights thereof. If the original deed and the decree gives the purchaser the right to sue for the ejectment of the ex-proprietor he will not be prevented from doing so but on this point the Collector need express no opinion at the time of sale. This should be explained to bidders when the property is put up for sale." The property was accordingly put up for sale under the order in the form above stated on October 3, 1914, the Chief Commissioners order contained in the letter above referred to being explained to the bidders. The respondent, the decree holder, who had permission to bid, was the purchaser for Rs. 1,07,000. The respondent, the decree holder, who had permission to bid, was the purchaser for Rs. 1,07,000. Sale certificates were issued to the respond ent, the property sold being described in each certificate as a village with all actual and reputed rights as detailed in the mortgage deed. Warrants for possession having been issued under Order xxi., r. 95, possession was delivered of the land excepting the sir and khudkasht lands therein. The appellants were entered in the settlement register as occupancy-tenants of the sir-lands. The respondent instituted the present suit on November 19, 1915, claiming actual possession of the sir and khudkasht lands with mesne profits, a declaration that the appellants had no occupancy rights therein, and rectification of the settlement register. The appellants by their written statement pleaded that the mortgage did not include the cultivating rights in the sir-lands, and that having regard to the Central Provinces Tenancy Act (IX, of 1883), s. 42 (which is set out in the judgment of the Judicial Committee), the cultivating rights remained in them since the decree did not expressly direct their sale; they also relied on the Code of Civil Procedure, 1908, s. 47, which by sub-s. 1 provides that all questions arising with regard to the execution of a decree shall be determined by the Court executing the decree and not by a separate suit. The District Judge held that having regard to s. 47 of the Code the suit could not be maintained save so far as rectification was claimed, and he declined to treat the suit as an application in the execution as he could have done under sub-s. 2 of that section. He subsequently dismissed also the claim for rectification, holding that " the plaintiff did not acquire any occupancy rights in the sir-lands, and could not acquire them seeing that the cultivating rights had not been sold." An appeal to the Court of the Judicial Commissioner was allowed, a decree being passed for possession and for cancellation of the entry in the settlement register. The learned judges said that having regard to the fact that the mortgage was registered before the commencement of the Central Provinces Tenancy Act of 1898, and to the saving clause in sub-s. 6 introduced into s. 15 of that Act by Act XXI. The learned judges said that having regard to the fact that the mortgage was registered before the commencement of the Central Provinces Tenancy Act of 1898, and to the saving clause in sub-s. 6 introduced into s. 15 of that Act by Act XXI. of 1899, the rights of the parties were to be determined by s. 42 of the repealed Tenancy Act of 1883. They proceeded as follows " We are concerned in this appeal with sub-clause (c) of s. 42. Now a decree can only direct rights to be sold if there is a contrat to that effect between the parties to the suit. An examination of the description of the parcels hypothecated clearly shows that all rights of the proprietor in the sir were mortgaged. No doubt the words cultivating rights or ‘the right to cultivate are not to be found either in the mortgage or in the decree. While clause (a) speaks of the right to cultivate the sir-land, clause (c) speaks only of the proprietors rights in the sir-land. It is not contended before us that upon a true construction of the mortgage deed all the mortgagors rights in sir-land were not mortgaged and these rights would obviously include the right to cultivate it. But it is argued on behalf of the respondents that the decree must expressly direct the sale. We agree with the contention that the direction must be express and not one by necessary implication. We are however unable to agree with the further contention that the decree must be self-contained and that a Court is not at liberty for the purposes of this section to look at anything which is outside the decree. If the mortgage deed were treated as a schedule to the decree, all relevant passages cited in such a schedule would be part of the decree, and if the direction as to what is ordered to be sold is to be found upon a reading of the decree with reference to the schedule, then we are of opinion that the terms of the statute have been complied with. .... Stress is laid on behalf of the respondents " (i.e., the present appellants) " upon the fact that the endorsements on the first Courts decree were ordered to be deleted by the decree of this Court. .... Stress is laid on behalf of the respondents " (i.e., the present appellants) " upon the fact that the endorsements on the first Courts decree were ordered to be deleted by the decree of this Court. What seems to have happened was this counsel for both sides admitted that it was unnecessary to decide at that stage of the case the rights of the parties in the possible event of a sale. There was no compromise at all between the parties in any sense of the word. The learned Judicial Commissioner apparently adopted the view submitted before him. The decree of the first Court was not modified as the result of an adjudication upon the merits but solely on the ground that it was premature to decide the point involved. Under these circumstances we are of opinion that the respondents contention arising from the substitution of the wording in the decree has no force." They also said that if it had been necessary they would have had no hesitation in treating the plaint as a petition under the Civil Procedure Code, s. 47. 1921. Abdul Majid for the appellants. The cultivating rights in the sir-lands were not included in the mortgage, nor were they intended to be sold under the decree. In any case since the cultivating rights were not expressly mentioned in the sale decree only the proprietary interest in the sir-lands could be sold, the appellants becoming occupancy tenants by virtue of s. 42 (c) of the Central Provinces Tenancy Act, 1883. No estoppel arose by reason of the alteration in the indorsement of the original decree ; the appellants rights under the section cannot be affected by estoppel. [Reference was made, as to the effect of the sale, to Balvant v. Hirachand (( 1903) I. L. R. 27 B. 334.) and Pettachi Chettiar v. Sangili. (( 1887) L. R. 14 I. A. 84.)] Dunne, K.C. and Kenworthy Brown for the respondent. Having regard to the terms of the mortgage deed the cultivating rights were part of the hypothecated property. In the judgment of the Board in the former appeal relating to this mortgage it was observed (Gulab Singh v. Seth Gokuldas (L. R. 40 I. A. 117.)) that an offer to hand over the mortgaged property less the sir-lands was not in compliance with the contract. In the judgment of the Board in the former appeal relating to this mortgage it was observed (Gulab Singh v. Seth Gokuldas (L. R. 40 I. A. 117.)) that an offer to hand over the mortgaged property less the sir-lands was not in compliance with the contract. The suit which was then before the Board was one for possession of the mortgaged property including the sir-lands, and in that suit the appellants could have raised the contention that the mortgage did not include the sir-lands. Further it appears from the judgment of the Judicial Commissioners that that contention was not raised before them. Sect. 42 of the Act of 1883 affords no defence. The decree directed the sale of the sir-lands as expressly as if the words of the mortgage deed had been set out. The section does not require that the cultivating rights shall be expressly mentioned. But in any case the appellants cannot now avail themselves of the form of the decree, since it was adopted upon their objection and to preserve the rights as they existed under the mortgage deed. Abdul Majid replied. Jan. 31. The judgment of their Lordships was delivered by LORD BUCKMASTER. The suit out of which this appeal has arisen was instituted by the present respondent asking as against the appellants for possession of the sir and khudkasht lands that had been comprised in a mortgage executed on September 10, 1891. The only defence to the suit which now remains for consideration was based upon s. 42 of Act IX. of 1883, an Act which although it has been subject to certain subsequent modifications and change operates and binds the parties to this mortgage. The only defence to the suit which now remains for consideration was based upon s. 42 of Act IX. of 1883, an Act which although it has been subject to certain subsequent modifications and change operates and binds the parties to this mortgage. That section runs in these terms " Every person whose proprietary rights in land comprising sir-land are, after this Act comes into force, transferred in any of the following cases, namely—(a) When he sells those rights without expressly agreeing to transfer his right to cultivate the sir-land, (b) when those rights are sold for an arrear of land revenue, (c) when those rights are sold in execution of any decree which does not expressly direct the sale of his rights in the sir-land, shall become an occupancy-tenant of that sir-land, and the rent payable by him as such shall be fixed by a revenue-officer on application made by him or by his landlord." The relevant clause in the section is the last and the question that has been argued before their Lordships is whether or no the decree under which this sale was made did or did not expressly direct the sale of the rights in the sir-land. The Judicial Commissioners from whom this appeal proceeds took the view that it did ; but their Lordships think in the circumstances of this case it is unnecessary to examine and consider that question, and for this reason that the appellant in this case cannot be heard to maintain that it did not. The mortgage undoubtedly comprised all the rights in the sir-land. In the course of the judgment by the Judicial Commissioners, it is stated that it was not contended before them " that upon a true construction of the mortgage deed all the mortgagors rights in the sir-land were not mortgaged and these rights would obviously include the right to cultivate it " ; and in a judgment of this Board on an appeal arising out of the same mortgage (Gulabsingh v. Seth Gokuldas (L. R. 40 1. A. 117.)), there is an expression of opinion to the same effect. That expression of opinion does not follow upon any elaborate argument; because in truth examination of the mortgage deed makes it plain. A. 117.)), there is an expression of opinion to the same effect. That expression of opinion does not follow upon any elaborate argument; because in truth examination of the mortgage deed makes it plain. In those circumstances, when the original suit was instituted on December 22, 1904, to obtain a decree for sale, the property which the mortgagee was entitled to sell was property from which the mortgagor could be excluded from his right of cultivation. On April 4, 1906, a decree for sale was made in that suit and that decree specified as the property that was to be offered for sale property including the cultivating rights in the sir. An appeal was brought from that judgment and it was challenged upon many grounds. Among others it was urged that the Court had been wrong in holding that under the terms of the mortgage the mortgagee could exclude the mortgagor from his cultivating rights in the sir. That question by agreement between the parties was left over. It was in their Lordships view an unfortunate circumstance that when such a matter, obviously open for decision, could and might then have been readily decided it should have been postponed to a later date with the inevitable result of provoking further dispute in the future. Both parties, however, agreed to this course and the judgment upon which the decree was then based contains this statement " Both sides agree that it would be premature to decide what the position of a purchaser under decree absolute for sale will be in respect of the sir. In the list of the mortgaged property on the back of the lower Courts decree for the words with cultivating rights in sir, the following will be substituted with all actual and reputed rights as detailed in the mortgage. " The one thing that is to their Lordships mind quite plain is that this alteration was not intended to conclude the case in favour of the mortgagor, but to leave open to both sides the rights that would be established in the event of the mortgage deed being decided in the one way or in the other. " The one thing that is to their Lordships mind quite plain is that this alteration was not intended to conclude the case in favour of the mortgagor, but to leave open to both sides the rights that would be established in the event of the mortgage deed being decided in the one way or in the other. Consequently, the words in that decree, " with all actual and reputed rights as detailed in the mortgage " which were to be substituted for the express and exact words that were contained in the original decree were expressly and definitely intended and agreed by both parties to take effect in favour either of the mortgagor or the mortgagee according to the true meaning to be placed on the deed. The property has now been sold under that decree and the appellants here who represent the mortgagor claim that as those words do not comply with the strict conditions mentioned in s. 42 their rights of cultivation have not been taken away ; in other words they seek to make the decree operate in a manner opposite to the agreed purpose for which it was framed. Their Lordships have already pointed out that they do not propose to examine the reasons why the learned Judicial Commissioners think that even that contention is not well founded. They base their view upon the ground that the circumstances in which that modification was made are circumstances which prevent the appellants from asserting that by the result of that alteration the rights of the mortgagee under the original decree with regard to this cultivation were completely taken away. For this reason they think that the appeal should fail and they will humbly advise His Majesty that it be dismissed with costs.