JUDGMENT Mukerji, J. - In this appeal Mr. Bajpai has taken a preliminary objection namely that the appeal is not maintainable. The point raised is rather difficult. I have however given it my best consideration. 2. The facts are these:-The appellant's predecessor-in-title brought the suit out of which this appeal has arisen. It was a suit for redemption to which eleven persons were made parties. It was distinctly stated in the plaint that the suit was really directed against defendants 1 to 5 and if the other defendants who had been made parties as a mere matter of form did not object, the plaintiff was not going to hold them liable either for costs of the suit or for damages. The suit succeeded in the Court of first instance and redemption was decreed on payment of a certain amount of money. Defendant No. 8 who was the original mortgagee filed a written statement but he nowhere said in it that the suit was liable to be dismissed in toto on any ground whatsoever. All that he asked for was that he should be allowed a certain amount of money in the case of redemption. From the decree passed in favour of the plaintiff there were two appeals before the first appellate Court, one was appeal No. 220 of 1921. This was instituted by the defendants 1-5. The other appeal No. 223 of 1921 was filed by the defendant No. 8, Bhagirath Bam, who died pending the appeal. Defendants 1 to 5 had urged in their written statement that the suit was incompetent and should be dismissed. They pleaded limitation and raised other objections. In their grounds of appeal they repeated the plea of limitation. This plea succeeded in the Court of first instance. In the appeal filed by Bhagirath Bam he urged that he should have his money, but in the last ground of appeal he asked that the suit should be dismissed. 3. The Court of first instance wrote a combined judgment allowing the appeal lodged by defendants 1 to 5. While concluding this judgment it said as follows:- "Civil Appeal No. 228 of 1921 was instituted by the representatives of Bhagirath Ram who claimed half the consideration money and he also asked that the appeal should be dismissed." 4. The appeal No. 228 was also allowed and the suit was ordered to be dismissed. While concluding this judgment it said as follows:- "Civil Appeal No. 228 of 1921 was instituted by the representatives of Bhagirath Ram who claimed half the consideration money and he also asked that the appeal should be dismissed." 4. The appeal No. 228 was also allowed and the suit was ordered to be dismissed. The present appeal is against the decree passed in appeal No. 220 of 1921 which had been brought by the defendants 1 to 5 only. But in this Court Bhagirath's heirs namely Bujhawan Bam, Lakhan Ram and. Nand Kishor, have been impleaded. 5. Now it is urged on behalf of the respondents that as no appeal has been lodged against the decree made in appeal No. 228 of 1921 this appeal is not maintainable. 6. On behalf of the appellant the case of Ghanshiam Singh v. Bhola Singh (1923) All. 490 = 45 All. 506= 21 A.L.J. 465= 4 L.R.A. Civ. 265 (F.B.) recently decided by five learned Judges of this Court has been cited and it has been urged that practically there is one decree and the mere fact that the formality of filing an appeal against the decree in appeal No. 228 of 1920 has not been gone through should not prejudice the present case. I think I ought to accept this argument of the learned counsel for the appellant. I have already stated that the heirs of the defendant No. 8, Bhagirath Ram, are parties to the present appeal. It is not the case that an appeal has been lodged against only defendants 1 to 5 who alone were said to be in possession and were found to be in possession by the Court of first instance. If a separate appeal has been filed against the decree in appeal No. 228 of 1921 the same question would have arisen as would arise in the present appeal. I have already mentioned that the defendant No. 8 never urged in his written statement that the suit should fail. In his grounds of appeal too be never urged the plea of limitation. Under the circumstances I think we ought to look to what should operate substantial justice and should overlook the technical side of the question (if any). 7. I have already mentioned that the defendant No. 8 never urged in his written statement that the suit should fail. In his grounds of appeal too be never urged the plea of limitation. Under the circumstances I think we ought to look to what should operate substantial justice and should overlook the technical side of the question (if any). 7. I do not think it necessary to discuss the Full Bench case, but I may point out that what was decided there was that a Court has to look to the substance of a thing rather than to the form. In my opinion as the heirs of Bhagirath Bam are parties to this appeal they cannot in any way be prejudiced by the fact that no appeal was filed against the decree which they got in their own appeal. The appeal may therefore be argued on the merits. 8. The facts which have given rise to this appeal are shortly these:-One Harcharan Singh was the proprietor of the disputed property which he lost, as a result of the execution of a decree against him, at an auction-sale held on 20th of May, 1897. About a month later on the 17th June, 1897, he made the mortgage in question. By this mortgage he mortgaged with one Bhagirath Ram a small plot of land for the sum of Rs. 24. The auction-purchasers who are now represented by defendants 1-5 instituted two suits for redemption of certain mortgages executed by Harcharan Singh in the years 1886 and 1887. The suits for redemption did not include the mortgage now in question. The suits were referred to arbitrators for derision and they decided that the auction-purchasers should pay half of the amounts of the two mortgages of 1886 and 1887 and also half of the amount of the mortgage of 17th June, 1897. The result was that after the redemption, the auction-purchasers took possession of the mortgaged properties sometime in 1905, Harcharan Singh put in an objection in the Execution Department. His objection was rejected on 17th Jung, 1905. The suit out of which this appeal has arisen was instituted by the son of Harcharan Singh for the redemption of the mortgage dated the 17th June, 1897, as against the defendants 1-5, the auction-purchasers. In the plaint he said that the original mortgagee Bhagirath Bam and others were merely pro forma defendants. 9. The suit out of which this appeal has arisen was instituted by the son of Harcharan Singh for the redemption of the mortgage dated the 17th June, 1897, as against the defendants 1-5, the auction-purchasers. In the plaint he said that the original mortgagee Bhagirath Bam and others were merely pro forma defendants. 9. The suit was resisted inter alia on the ground of limitation. This plea succeeded in the first Court of appeal. This is the only question for determination in this Court namely whether the Court below was right. 10. On behalf of the respondents it has been urged that either section 79 of the Tenancy Act applies or article 144 of the Limitation Act applies, and in either case the suit is time-barred. 11. It is urged that the arrangement, through the arbitration, that was come to, between the auction-purchasers and Bhagirath, amounted to an ouster of Bhagirath from the land and the ouster of Bhagirath amounted to the ouster of Harcharan Singh who had become an ex-proprietary tenant of the mortgaged plot, he having lost, a month before, his title as zamindar. This argument does not appeal to me and for this reason, that section 79 appears to apply to a case where there is more or less forcible ejectment and does not apply where there is an 'ejectment' by mutual consent. 12. On the second point I think the respondents' contention should succeed. As I have already mentioned, the redemption suits did not relate to the mortgage in question. That however, by itself, is not very important. In agreeing to pay half the money due on the mortgage of 17th June, 1897, the auction- purchasers really purported to assume the rights of Harcharan Singh as an ex-proprietary tenant. They had no right of redemption. They usurped, as it were, that right. It cannot be said that by the redemption, effected by means of the award, they became transferees or assignees of the mortgagee's rights. They claimed adversely to Harcharan Singh and in their own right. The redemption by the auction-purchasers was in defiance of all title as an ex-proprietary tenant that may have remained in Harcharan Singh. In this view article 148, schedule 1 of the Limitation Act would not apply. They claimed adversely to Harcharan Singh and in their own right. The redemption by the auction-purchasers was in defiance of all title as an ex-proprietary tenant that may have remained in Harcharan Singh. In this view article 148, schedule 1 of the Limitation Act would not apply. The suit, therefore, although framed as one of redemption, is really a suit for recovery of property against persons who had no right to hold that property with an offer to compensate them for such monies as they may have parted with. 13. I think that the decree of the Court below was right and I dismiss the appeal with costs.