JUDGMENT Sinha, J. - This is a Plaintiffs' appeal and arises out of a suit u/s 33 of the Agriculturists' Relief Act. The facts, which are not disputed, are briefly these. One Kesho Ram, ancestor of the Appellants, was a zamindar of patti and mabal Kesho Ram in which he held certain land as his sir and kbudkasht. He granted a mortgage, with possession, to one Ajodhya Prasad on March 19, 1907. In 1915, in execution of a simple money decree against him, zamindari share to which appertained the sir lights of Kesho Ram was sold and purchased by persons who are not party to this litigation. The Plaintiffs, who are the heirs of Kesho Ram, have brought this suit for accounts u/s 33 of the Agriculturists' Relief Act (Act 27 of 1934) in respect of the mortgage of March 19, 1907. The defence, in the main, was that the Plaintiffs have, in the events which have happened, no interest in the mortgage Security and are not entitled to claim any relief. 2. It might be mentioned that, although Kesho Ram parted with possession under the sunfractuary mortgage of 1907, nevertheless the names of Kesho Ram and the Plaintiffs are recorded in the revenue papers, after the auction sale of 1915, as exproprietary tenants of the land. 3. It has been found by both the Courts below that the Plaintiffs are agriculturists. The learned Munsif decreed the suit. The lower appellate Court, while agreeing with the learned Munsif that the Plaintiffs are agriculturists, refused them this relief on the ground that they lost all interest in the mortgage security, are not entitled to redeem the mortgage and are not, therefore, entitled to claim any relief u/s 33 of the Agriculturists' Relief Act. 4. It must be mentioned at the outset that the mortgage and the auction sale took place at a time when the Agra Tenancy Act (Act 2 of 1901) was in force and the rights of the parties fall to be determined within the meaning of that Act. According to Section 10 every proprietor, whose proprietary rights in a mahal or in any portion thereof are transferred, shall become a tenant with a right of occupancy in his sir land. According to it a usufructuary mortgage is a transfer. According to Section 10 every proprietor, whose proprietary rights in a mahal or in any portion thereof are transferred, shall become a tenant with a right of occupancy in his sir land. According to it a usufructuary mortgage is a transfer. The special privilege of such a tenant was that he was entitled to hold the land at a rent four annas in the ruee less than the rate generally payable by con-occupancy tenants for land of similar quality and with similar advantages in the neighbourhood. It was held so far back as the year 1911 in Ikram Ullah Khan v. Moti Chand (1911) 33 All. 696 : 8 A L J 826 that, even if there is a stipulation in the sale-deed as regards relinquishment of the rights of the vender or mortgagor of bis interest in the sir land, the transferor does not lose bis righ's. The case went to the Privy Council Moti Chand v. Ikram Ullah khan (1917)39 All. 173. and their Lordships of the Judicial Committee have, if anything, expressed their view and the policy of the Act in clearer and unmistakable terms. Say their Lordships at page 1771: It appeals to their Lordships that it cannot be deubted that the policy of Act No. 11 of 1901 is to secure and pre serve to a proprietor whose proprietary rights in a mahal or in any portion of it are transferred otherwise than by gift or by exchange between co-sharers in the mahal a right of occupancy in his "sir" lands and in the land which he has cultivated continuously for twelve years at the date of the transfer, and that such right of occupancy is by the Act secured and preserved to the proprietor, who becomes by a transfer the ex-proprietor, whether he wishes it to be secured and preserved to him or not and notwithstanding any agreement to the contrary between him and the transferee. The policy of the Act is not to be defeated by any ingenious devices, arrangements or agreements between a vender and a vendee for the relinquishment by the vendor of his "sir" land or land which he has cultivated continuously for twelve years at the date of the transfer, for a reduction of purchase money on the vendor's failing or refusing to relinquish such lands, or for the vendor being liable to a suit for breach of contract on his failing or refusing to relinquish such lands. 5. If the auction sale of 1915 bad stood all by itself there can be no doubt that the exproprietary rights would have accrued in favour of the Appellants and they would have been entitled to bring this suit. It was held in Muhammad Husain Khan v. Hanuman (1918) 16 A L J 799 (sic)that an exproprietary tenant has an Interest in the mortgage security. What is the effect of the usufructuary mortgage of 1907 ? That it was antecedent and not subsequent to the auction sale is, to my mind, of no consequence. The rights of Kesho Ram were twofold; his right as a proprietor, that is, as a zamindar, and his right as a sir bolder. The auction sale, whether prior or subsequent to the usufructuary mortgage, dealt with his right as the zamindar. It did not have any effect upon his sir rights. On the making of the mortgage in 1907 the rights reserved by Section 10 came into being. These were his rights as an exproprietary tenant and they carried with it a valued privilege that he was to hold the laid on payment of rent, which was four annas in the rupee less than the rate payable by non-occupancy tenants for lands of similar quality. If on the transfer of the sir rights, he did not avail himself of his right of actual cultivation, that privilege be lost, but the right which still resides in him, namely the right to redeem can never be lost to him unless suitable action is brought under I Order 34 of the Code of Civil Prccedure. 6. If on the transfer of the sir rights, he did not avail himself of his right of actual cultivation, that privilege be lost, but the right which still resides in him, namely the right to redeem can never be lost to him unless suitable action is brought under I Order 34 of the Code of Civil Prccedure. 6. There was no doubt a controversy at one time, whether a sale in contravention of Order 34 was void or voidable end Order 34, Rule 14 of the Code of CPC was the rock on which judicial opinion had split, but their Lordships of the Judicial Committee have definitely held that it is not void but voidable Khiarajmal v. Daim (1905) 32 Cal 296 at 316. Beyond this the law has in reduced no change and it lies with the mortgagor to exercise his right of redemption, notwithstanding anything done by the mortgagee to deprive him of his right in case the formalities recognised, by Order 34 are not gone through. 7. The learned Civi1 Judge has relied upon Tolat Misir v. Muneshar Koeri (1924) 22 A L J 463 and Ram Prasad Singh v. Nepal Singh 1926) 23 A L J 363. 8. The facts in the first case were these: One Tolai made a Mortgage with possession of certain sir ana khudaahst plots in favour of Muneshar. On the making of the mortgage ex-proprietary rights accrued in his favour but he did not claim the tenancy for about six years. He, however, dispossessed the mortgagee of a portion of the land without making any payment. In a suit for possession brought by the mortgagee, this Court held that he was entitled to possession. 9. This case, to my mind, affords no parallel to the case before me. It goes ony so far and no futher than this that the mortgagee could not he disturbed in his possession, if the mortgagor did not take suitable action to enforce bis right as an exprcprietary tenant within the period of time provided by the law and his suit for possession must succeed. The present is not a suit for possession by the mortgagee. Nor is it a suit for unconditional possession by the mortgagor. It is a suit for accounts and is allied to a suit for redemption. The present is not a suit for possession by the mortgagee. Nor is it a suit for unconditional possession by the mortgagor. It is a suit for accounts and is allied to a suit for redemption. The usufructuary mortgage assured the mortgagee his possession, but it did not mean a transfer of the entire bundle of rights which the mortgagor possesed. In other words, it was not a sale, the right of redemption was never transferred to him and that right can never be lost to the mortgager except, as I have already said, in the manner provided by Order 34 of the Code of Civil Procedure. 10. Some light might be thrown by the case of Ramzan: v. Bhukhal Rai (1908) 46 A L J 747. One Ramzan made a usufructuary mortgage of anoccupancy holding in 1906. A suit for redemption was brought several years after the mortgage. Section 20 of the Act of 1901 prohibited, interalia, the transfer of the interest of an exproprietary tenant or a non-occupancy tenant. One of the defences to the suit was that the transfer was void and the suit for redemption did not He. Sir Henry Richards, delivering the judgment of the Court, made observations, which will be of assistance in the determination of this case. Said he: The lower appellate Court reversed the decree of the Court of first instance and dismissed the Plaintiff suit upon the ground that the mortgage was null and void. It seems to us that this decision is wholly wrong and inequitable. It might be that if the Plaintiff came into Court and asked to get back his property without payment of the mortgage money at all on the ground of the illegality of the transaction that the Court would put him upon terms of paying the mortagage money Even this view is not universally taken tor one learned Judge at least has held that in such a case the owner of the occupancy tenancy could get back the property without paying the mortgage money. However in the present case the Plaintiff very honestly comes in offering to pay the mortgage money. In our opinion he is clearly entitled to get possession on so doing. 11. In other words, the nature of the property transferred and lapse of time had not extinguished the right of the mortgagor to redeem. 12. However in the present case the Plaintiff very honestly comes in offering to pay the mortgage money. In our opinion he is clearly entitled to get possession on so doing. 11. In other words, the nature of the property transferred and lapse of time had not extinguished the right of the mortgagor to redeem. 12. There is, on principle, no distinction between an occupancy tenancy and an exproprietary tenancy, as the prohibition contained in Section 20 of the Act a plies equally to both. It is there are, obvious that whereas the mortgagee is entitled to retain possession of the property so long as he is not redeemed, nothing has happened to redeem. 13. I, therefore, allow the appeal, set aside the decree of the lower appellate Court and that of the Court of first instance with costs in all Courts. Leave to file a Letters Patent appeal is refused.