JUDGMENT Malik, C.J. - This is a decree-holder's appeal. On 26th June 1925, the defendant had executed a mortgage by conditional sale in favour of the plaintiff. The mortgage was without possession. The mortgagee filed a suit, No. 120 of 1936, for foreclosure. On 7th of July 1937, a preliminary decree for foreclosure was passed. On 17th April 1939, the decree-holder filed an application that the amount fixed under the preliminary decree had not been paid within the time allowed and the final decree for foreclosure under O. 34, R. 3, Civil P.C., should be passed in his favour. The final decree was passed on 8tb July 1939, The decree-holder had not asked for delivery of possession. On 29th July 1939, he applied for delivery of possession in the execution department. The Debt Redemption Act (XIII [13] of 1940) came into force on 1st January 1941 and on 4th January 1941, the judgment-debtor prayed for amendment of the decree under Ss. 8 and 9, Debt Redemption Act and filed an objection to the delivery of possession on the ground that the land, in his possession, was protected under S. 17, Debt Redemption Act. The objection was allowed by the learned Munsif who, on 10th May 1941, refused to deliver possession and directed amendment of the foreclosure decree in accordance with the provisions of S. 8. The decree-holder filed an appeal against that order, refusing the delivery of possession. The appeal was allowed by the learned Civil Judge who held that the mortgagor's right in the property had become extinguished after the final foreclosure decree and the decree-holder was therefore, entitled to get possession. The lower Court directed delivery of possession of the property to the decree-holder. There was an execution second appeal filed against that order which came up before a learned Single Judge who allowed the appeal and restored the order of the learned Munsif. Against that order this appeal has been filed. The relevant portion of S. 17, Debt Redemption Act is as follows: Notwithstanding anything contained in S. 16 or in any other law for the time being In force the land of an agriculturist, the local rate payable by whom or recoverable from whom does not exceed Rs. Against that order this appeal has been filed. The relevant portion of S. 17, Debt Redemption Act is as follows: Notwithstanding anything contained in S. 16 or in any other law for the time being In force the land of an agriculturist, the local rate payable by whom or recoverable from whom does not exceed Rs. 25 per annum, shall not be sold or otherwise transferred in execution of a decree to which this Act applies, nor shall a final decree for foreclosure be passed in respect of such land.... The point urged before the learned Single Judge was that an application for delivery of possession after the passing of a final decree does not come within the words otherwise transferred in execution of a decree to which this Act applies. Argument before us has been slightly different. The point urged before us is that, after the final decree for foreclosure, the property included in the decree is no longer "the land of an agriculturist." We have, therefore, to see what is the effect of a final decree for foreclosure. 2. Before we come to Indian law, it may be necessary to make a brief reference to the English law on the subject. Under the English law the land was conveyed in fee simple to the mortgagee on condition that, if the loan was repaid upon the day which had been fixed by agreement, the conveyance should be defeated, and the mortgagor be free to reenter. If repayment was not made on the exact date fixed, then the estate of the mortgagee became absolute, and the mortgagor's interest was extinguished. 3. It would be seen that there is no difference between this and a sale, in this country, with a right to repurchase: Courts of Equity fundamentally altered this strict legal view so that the whole nature of a mortgage was changed. The form as indicated by Littleton remained, but Equity, interfered on the general principle that relief should be granted against forfeiture for breach of a penal condition. At common law a mortgagor was entitled to resume ownership of his estate if, but only if, he repaid on the appointed day. He had a contractual right to redeem his property within the limit of time. At common law a mortgagor was entitled to resume ownership of his estate if, but only if, he repaid on the appointed day. He had a contractual right to redeem his property within the limit of time. When once that day had passed without repayment, the condition automatically operated to defeat his estate, But the view taken by Equity was that in essentials a mortgage is not in truth a conveyance of land, but a transaction intended merely to afford security to the mortgagee for money which he has lent, and if the money is ultimately repaid there is no justification for depriving the mortgagor of his interest merely because he has failed to pay by the exact day : See Cheshire's Modern Real Property, Fifth Edition, page 676. As a result of the decisions of the Courts of Equity, the legal title, though it was conveyed to the mortgagee, the equitable title which was known as "equity of redemption" remained in the mortgagor and when there was a decree passed for foreclosure the equity of redemption was extinguished and the legal title, which was already in the mortgagee, became full title without being subject to any possibility of interference by the Courts of Equity. 4. When the Transfer of Property Act came to be enacted the conception of a mortgage as a security for money borrowed was accepted by the Legislature. In S. 58 a mortgage is defined as the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. 5. A mortgagee under the Indian law does not become the owner of the mortgaged property. The mortgagor remains the owner of the property though in Indian law the words "equity of redemption" and "foreclosure" have been borrowed and introduced. 6. The Law of Property Act, 1925, ch. 20, 15 Geo. V. made substantial changes in the Law of Heal Property and it deals with both legal estates and equitable estates. Section 88, sub-s. (2) of the Act provides that where any such mortgagee obtains an order for foreclosure absolute the order shall operate to vest the fee simple in him .... 20, 15 Geo. V. made substantial changes in the Law of Heal Property and it deals with both legal estates and equitable estates. Section 88, sub-s. (2) of the Act provides that where any such mortgagee obtains an order for foreclosure absolute the order shall operate to vest the fee simple in him .... There is thus a clear provision in the statute that a decree for foreclosure vests the property absolutely in the mortgagee. 7. Though under the Indian law the legal title always remained in the mortgagor and the mortgagee only got some interest in the property as security for the money advanced by him, yet no express provision was made in the Indian Statute similar to the provisions in S. 88 (2), Law of Property Act. Before the Act of 1926, it was not necessary in England to have such a provision as the legal title having already passed to the mortgagee, the equitable title which remained in the mortgagor was extinguished by the final decree for foreclosure. 8. The point that we have to consider is whether a final decree for foreclosure extinguishes the title of the mortgagor in the mortgage property so that it could no longer be said, within the meaning of S. 17, Debt Redemption Act, that the land is "the land of an agriculturist." The Indian law of mortgages was borrowed from the English law. It is urged that it should be assumed that even after the passing of the Transfer of Property Act a foreclosure decree was intended to have the same effect. The earliest case cited by Mr. Jagdish Sarup for the appellant is Shiam Narain Singh v. Raghooburdyal, 3 cal. 508 : (1 C.L.R. 343), where it was observed that a foreclosure decree converts a conditional decree into an absolute sale. This view has been accepted in a series of decisions of various Courts. It is not necessary for us to refer to them; we may only mention the cases decided by this Court such as Munnalal v. Mununlal, 36 ALL. 327: (A.I.R. 1914 ALL. 63), Sheoram Singh and Others Vs. Babu Singh and Others and Syed Tayyab Hasan Vs. This view has been accepted in a series of decisions of various Courts. It is not necessary for us to refer to them; we may only mention the cases decided by this Court such as Munnalal v. Mununlal, 36 ALL. 327: (A.I.R. 1914 ALL. 63), Sheoram Singh and Others Vs. Babu Singh and Others and Syed Tayyab Hasan Vs. Syed Saghir Hasan and Others, AIR 1939 All 52 It is true that in all these cases it was assumed that a decree for foreclosure has that effect on the ground that it has that effect in England, bat the law being well settled, we do not think we should now say that the conception of a mortgage in England before the Real Property Act was so materially different from its conception in this country that a foreclosure decree without a provision similar to that in S. 88, sub-s. (2), Law of Property Act, 1925, does not pass title in the property to the mortgagee. If the foreclosure decree has not the effect of passing the title in the property from the mortgagor to the mortgagee and putting an end to the mortgagor's title, there is no other provision in O. 34, Civil P.C. or in the Transfer of Property Act, or any other Act which can have that effect. Order 34, R. 3, sub-r.(2) provides that: Where payment in accordance with sub-r. (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persona claiming through or under him are debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property. The only right that the mortgagor had after the execution of the mortgage was to redeem the mortgage and, if be had not parted with possession, to remain in possession of the property so long as he was not dispossessed by due process of law. The final decree for foreclosure puts an end to both these rights and directs that the right of a mortgagor to redeem the property would be extinguished and further that the defendant shall put the plaintiff in possession of the property. The final decree for foreclosure puts an end to both these rights and directs that the right of a mortgagor to redeem the property would be extinguished and further that the defendant shall put the plaintiff in possession of the property. There can, therefore, be no doubt that it was intended that all the rights of the mortgagor should come to an end on the passing of a final decree for foreclosure and the mortgagee should become for all purposes the owner of the property. 9. Learned counsel for the respondent has urged that that may be the consequence in a case where there is a direction in the decree that possession shall be delivered to the decree-holder, but inasmuch as the decree-holder in this case had forgotten to ask for delivery of possession and the final foreclosure decree passed on 8th July 1939 did not contain any direction on this point and a separate application was later made by the decree-holder for delivery of possession, the title in the property would not pass so long as the defendant remained in possession of the property. We do not find any force in this contention. If a final decree for foreclosure has the effect of putting an end to the mortgagor's title in the property, then the land ceased to be "the land of an agriculturist" on 8th July 1939, after the final decree for foreclosure was passed. The fact that the application for delivery of possession was subsequently made to the executing Court would not have the effect of keeping the transfer of title in abeyance, nor can the executing Court by passing an order, directing delivery of possession, convey title if the title had not already conveyed to the mortgagee. 10. We are, therefore, of the opinion that the decision of the lower appellate Court was right. We set aside the judgment of the learned Single Judge of this Court. As the point that has been urged before us was not urged before the learned Single Judge and the learned Single Judge, therefore, had no opportunity of approaching this case from that point of view, we direct the parties to bear their own costs of this appeal.