Judgment :- 1. Whether the suit document is a mortgage or a lease was the main question that engaged the attention of the courts below. It has been concurrently held that the document should be read as a mortgage and not as a lease and the plaintiff has been given a decree. That is challenged in this second appeal by the first defendant in the suit. 2. At the hearing another question is raised and that concerns the applicability of S.6B of Kerala Land Reforms Act 1 of 1964. According to the first defendant he should be deemed to be a lessee even assuming that the suit document is a mortgage. That is because he is a mortgagee with possession of immovable property at the commencement of the Act and he is holding the property in consideration of payment of michavaram specified as such in the document evidencing the transaction. That would be sufficient if the area is one to which the Malabar Tenancy Act 1929 extended. That the property is within such an area is not disputed. That the document provided for payment of michavaram is also evident. The property is put in the possession of the person who took the document in lieu of the amount of Rs. 400/-advanced by him. Therefore it is contended that the mortgage was one with possession. If on this question the first defendant succeeds there is no need to go into the question as to the real character of the document, whether it is a mortgage or a lease. 3. The only dispute before me concerns the claim of the first defendant as a mortgagee with possession. That he was originally a mortgagee with possession is not disputed. But it is said that after the decree of the appellate court the decree-holder got delivery of the property, so much so that on the date when the Kerala Land Reforms (Amendment) Act 35 of 1969 came into force amending the principal Act, the first defendant was not a mortgagee with possession, in the sense, a mortgagee who still had possession of the property. This, according to the plaintiff, would be a sufficient answer, as, by reason of the divestiture of possession by court delivery, the mortgagee ceased to be a mortgagee with possession and therefore naturally he ceased to have such interest as would enable him to invoke S.6B of Act 1 of 1964. That section reads as follows: "6B. Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, a mortgagee with possession, of immovable property at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, in any area in the State to which the Malabar Tenancy Act 1929, extended, shall be deemed to be a tenant, if (a)he was holding such property in consideration of payment of customary dues, or any amount specified as michavaram in the document evidencing the transaction; or (b) there is a provision in such document for renewal on the expiry of a specified period". The section applies to a "mortgagee with possession of immovable property at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, in any area in the State to which the Malabar Tenancy Act, 1929, extended." The plaintiff would contend that the right to invoke S.6B of Act 1 of 1964 is lost by reason of the divesting of possession pending the appeal before this Court. 4. S.13A of Act 1 of 1964 provides for restoration of possession to a person who has been dispossessed of a holding on or after the 1st of April 1964, if be would have been a tenant under the Kerala Land Reforms Act as amended by Act 35 of .1969. This, of course, is a different right. It is not the same as the right to be deemed a tenant under S.6B. It is available to persons irrespective of whether they have filed appeals or not provided they satisfy the conditions prescribed by S.13A. Therefore it cannot be said that by reason of S.13A, the only right available to the first defendant would be to invoke that section for restoration of possession. I am referring to this only because the counsel for the plaintiff brought this to my noticer. 5. I have necessarily to construe S.6B of Act 1 of 1964 for the purpose of resolving the controversy in the case. I am referring to this only because the counsel for the plaintiff brought this to my noticer. 5. I have necessarily to construe S.6B of Act 1 of 1964 for the purpose of resolving the controversy in the case. Whether the term 'mortgagee with possession' should be read as referring to a person who, as mortgagee, is in physical possession of the property on the date of commencement of Act 35 of 1969 or whether it will include even a mortgagee who has been divested of possession pursuant to a decree which is subject to appeal before this court, is the question that I have to consider. 6. Any decree which is the subject-matter of an appeal is liable to be varied by the appellate court and if the rights of parties are altered during the pendency of the appeal by reason of change in the law, that too could be taken notice of by the appellate court. If. in the meanwhile, the decree of the lower court is executed by a party to the appeal, that execution will necessarily be subject to the result of the appeal and no rights in derogation of the rights derived by the parties to the appeal by the adjudication in the appeal can be claimed by reason of the execution. To put it in short, any execution pending, an appeal must necessarily be subject to the result of the appeal. In determining the rights of the parties to the appeal the fact that possession has been taken by execution of the decree appealed against may not be relevant. The nature of the rights of the parties calling for adjudication would remain unaffected by any execution that takes place during pendency of the appeal. Otherwise any decree in appeal would be rendered inoperative by reason of execution thereby defeating the rights of the parties. If this be the position, then a person does not cease to have the character of a mortgagee with possession if he was one on the date of the decree of the lower court which was executed. If a person would be entitled to certain rights as a mortgagee with possession on the date of the lower court decree, this would not be lost to him merely because his possession was taken over by the decree-bolder in execution of the decree during the pendency of the appeal. If a person would be entitled to certain rights as a mortgagee with possession on the date of the lower court decree, this would not be lost to him merely because his possession was taken over by the decree-bolder in execution of the decree during the pendency of the appeal. Any execution and recovery of property must necessarily be subject to the final adjudication in the appeal provided by law. The nature of the rights remain the same and the adjudication in the appeal will depend upon this. That would mean that in the case before me the defendant would be a mortgagee with possession, if he was a mortgagee with possession earlier. That he was one such is not disputed. 7. I see no reason to give a very restricted meaning to the words "a mortgagee with possession" so as to limit to cases where on the date of commencement of Act 35 of 1969 a person should be a mortgagee with actual physical possession of property, whatever may be the circumstances under which he was divested of his possession. 8. In the above view of the matter, I find that notwithstanding the court delivery, the first defendant is a mortgagee with possession. The benefit of S.6B will be available to him and that would mean that he is a tenant. A suit for redemption, even assuming the suit document is a mortgage, would not lie. Hence the Second Appeal has to be allowed and the suit dismissed. I do so. Parties are directed to suffer costs throughout, in the circumstances. A. N. K. Allowed.