JUDGMENT Henderson, J. - These two appeals are by the heirs of the successors-in-interest of the original mortgagors. Both the mortgages were executed on the 28th of November, 1921. They were mortgages by conditional sale. The Appellants made an application under sec. 26G (5) of the Bengal Tenancy Act. That is the subject-matter of S. M. A. 153 of 1943. The Respondents instituted a suit under sub-sec. (8) of the Act. That is the subject-matter of S. A. 970 of 1943. The Munsif came to a finding in the suit brought by the Respondents that nothing was due to the mortgagees and he accordingly dismissed the suit on the 30th of July, 1942. The Respondents did not then contest the Appellants' application under sub-sec. (5) and the Munsif allowed it ex parte on the 12th of December, 1942. The Respondents filed two appeals and the District Judge overruled the finding of the Munsif in the Respondents' suit and came to the conclusion that a sum of Rs. 700 was still due on the mortgages. He made a declaration to that effect. He then took the view that the Appellants' application under sub-sec. (5) must automatically fail and he dismissed it without going into the merits. 2. In the case of Mohendra Nath Haider v. Mohendra Nath Sarddr (sic), I had to consider the question whether there was really any repugnancy between the provisions of sub-sec. (5) and sub-sec. (8). I reached the conclusion that there is not and further held that sub-sec. (8) only applies to mortgages subsisting on the date of the commencement of the Bengal Tenancy Amendment Act of 1940. The mortgages in question in the present suit were really extinguished before that date. I gave leave to appeal but, so far as I know, no decision has yet been given. I shall therefore follow the decision which I gave then. 3. It will then be clear that the learned District Judge has put the cart before the horse. He should first have decided whether the Appellants' application under sub-sec. (5) should succeed or not. If the Appellants succeed, then the Respondents' suit becomes entirely infructuous and misconceived. 4. It appears to me that there is no answer to the claim of the Appellants made in their application under sub-sec. (5). The mortgages are (sic) by conditional sale. He should first have decided whether the Appellants' application under sub-sec. (5) should succeed or not. If the Appellants succeed, then the Respondents' suit becomes entirely infructuous and misconceived. 4. It appears to me that there is no answer to the claim of the Appellants made in their application under sub-sec. (5). The mortgages are (sic) by conditional sale. They were (sic) the commencement of the (sic) amendment Act of 1928. They on the 1st of August, 1937 (sic) mortgages for the (sic) in the instrument or for 15 (sic) are therefore, entitled to (sic) and to apply to the Court to (sic) possession. 5. (sic) is not necessary to consider ruling the decision of the Munsif on the question whether in a suit under sub-sec. (8) the mortgagor is entitled to all the benefits conferred upon him by the Bengal Money-Lenders Act or inferentially by any other Act. Suffice it to say that, as at present advised, I should not be prepared to support the conclusion of the learned District Judge. 6. The result is that both the appeals are allowed, the order and the decree of the District Judge are set aside and those of the Munsif restored. I make no order as to costs.