Judgment Shambhu Prasad Singh, J. 1. This second appeal by defendants except one (who is respondent No. 3 in this appeal) arises out of a suit for redemption of an usufructuary mortgage dated 24th of May, 1923, executed by Khubi Gope and Teja Gope in favour of original defendant No. 1 (since dead--whose heirs have been substituted in his place and are appellants before this Court) for Rs. 400/-. The properties mortgaged were plot Nos. 3839 and 3852 of khata Nos. 592 and 328 respectively of village Nagarnausa of the district of Patna (now Nalanda). Plot, No. 3839 measures 1.13 acres and plot No. 3852 measures .75 acre. Plaintiff? (respondents Nos. 1 and 2 in this appeal hereinafter referred to as the respondents) are descendants of the mortgagors is not in dispute in this appeal. Their simple case was that the mortgage was still subsisting, they tendered the mortgage money to the mortgagee but he refused to receive the same they then deposited the money in court, under Section 83 of the Transfer of Property Act, a notice of the deposit was duly served on the mortgagee and as in spite of service of notice he did not part Possession of the mortgaged Properties, the suit had to be instituted. 2. The defence case was that the landlord had filed a rent suit against the sons of the mortgagor Teja Gope and obtained a decree. Plot No. 3839 was auction sold and Purchased by the landlord-decree-holder in execution of the said decree. As a result of the sale, the mortgagors right to redeem was extinguished. After the decree-holder-auction purchaser took delivery of possession over the plot, the mortgagee--original defendant No. 1 filed an application, under Order 21, Rule 100 of the Code of Civil Procedure. That application was allowed and plot No. 3839 was released and out, back in possession of the mortgagee. Then he brought Miscellaneous Case No. 486 of 1945 for recovery of price of the produce of that plot for the period the decree-holder-auction purchaser had remained in unlawful possession. A decree was passed in that case as well. Execution of that decree was levied in execution case No. 1212 of 1944. Then he brought Miscellaneous Case No. 486 of 1945 for recovery of price of the produce of that plot for the period the decree-holder-auction purchaser had remained in unlawful possession. A decree was passed in that case as well. Execution of that decree was levied in execution case No. 1212 of 1944. The mortgagee-decree-holder auction purchased the interest of the landlord that is equity of redemption, in Plot No. 3839 in the said execution case and took delivery of possession over the same on 4th of March, 1947. Thus, according to defence case, the mortgage in respect of plot No. 3839 could no longer be redeemed. It was averred that the mortgagee used to pay the rental of the mortgaged plots to the mortgagors and decree and sale in favour of the landlord were due to failure on the part of the mortgagors to pay the rent. So far plot No. 3852 is concerned, the defence case was that on receipt of the notice of deposit, the mortgagee vacated possession over that plot and the respondents came in possession of it and, therefore, it was claimed that proportionate amount of the mortgage money deposited in court should be paid to the mortgagee. Want of cause of action, defect of parties and limitation were also pleaded Right of the respondents for mesne profits was denied. 3. The trial court disbelieved the case of the appellants that the mortgagee used to Pay rent to the mortgagors and was not In default. It recorded no finding of fraud or collusion between the landlord and the mortgagee but held that as the mortgagee was also defaulter and equity of redemption in plot No. 3839 was sold on that account, after he purchased it he became a trustee on behalf of the mortgagors of that plot. It accordingly decreed the suit directing the appellants to deposit in court the original Rehan bond and all other documents connected with it and to make over possession of the mortgaged lands to the respondents within 90 days of the courts order. The lower appellate court affirmed these findings of the trial court and dismissed the appeal of the appellants. 4. The lower appellate court affirmed these findings of the trial court and dismissed the appeal of the appellants. 4. Though the appeal was contested fey the respondents at the time it was placed before a learned Single Judge of this Court and he referred it to Division Bench, no one on behalf of the respondents has appeared before us. The appeal has accordingly been heard ex parte. Mr. Shankar Prasad, learned counsel for the appellants, has submitted that in absence of any finding of fraud or collusion between the mortgagee and the landlord, the courts below have erred in law in holding that the mortgagee was a trustee on behalf of the mortgagors of what he purchased from the landlord in execution case No. 1212 of 1944. According to Mr. Prasad, it was not a case where the mortgagee himself purchased the mortgaged property in execution of a decree of the landlord. The equity of redemption of the mortgaged property was purchased in execution of a decree against the landlord who had purchased it. If the landlord would have continued to hold that equity of redemption, the mortgagors could not have brought this suit for redemption. Therefore, they could not bring the suit even after the purchase by the mortgagee. In support of the aforesaid contention, Mr. Prasad has placed strong reliance on two Bench decisions of this Court (i) Fekua Mahto V/s. Lal Sahu, (AIR 1939 Pat 382) and (ii) Kewal Surihar V/s. Bikan Surihar ( AIR 1957 Pat 497 ). These decisions do support the contention of Mr. Prasad to a great extent. The only distinction which may be pointed out is that in those cases the sale was in execution of a rent decree which extinguished the mortgage itself. Therefore, in those cases, when the mortgagees purchased not at the auction sale itself, but after some time, there was no subsisting mortgage. In the present case, the sale was not in execution of a rent decree. If it would have been so, the application of the mortgagees for restoring the possession to him could not have succeeded. The landlord purchased merely the equity of redemption However, in both those decisions much emphasis has been laid on the fact that there was no fraud and collusion between the mortgagees and the landlord. If it would have been so, the application of the mortgagees for restoring the possession to him could not have succeeded. The landlord purchased merely the equity of redemption However, in both those decisions much emphasis has been laid on the fact that there was no fraud and collusion between the mortgagees and the landlord. In Kewal Surihars case, while distinguishing the decision of the Court in Deo Saran Singh V/s. Barhu Singh ( AIR 1952 Pat 286 ) and that of the Supreme Court in Sidhakamal Navan Ramanuj Das V/s. Bira Naik ( AIR 1954 SC 336 ), it was pointed out that in those two cases the mortgagee himself was the purchaser at the execution sale. Distinguishing another Bench decision of this Court in Ram Rup Singh V/s. Jang Bahadur Singh (AIR 1951 Pat 566) the learned Judges observed that in that case there was a finding that the mortgagee was guilty of fraud and collusion in making defaults in payment of rent decree. In Ram Rup Singhs case the purchase in the execution proceeding was not by the mortgagee but by the landlord. The mortgagee took a fresh settlement of the holding from the landlord after sometime. Mr. Prasad, therefore, is not right in submitting that ratio decidendi in Kewal Surihars case also was that mortgagee was not himself the purchaser in the execution proceeding itself According to me, the ratio decidendi of the decisions in Fekua Mahtos case and Kewal Surihars case is that in absence of fraud and collusion between the mortgagee and the landlord. Section 90 of the Indian Trusts Act cannot be made applicable if the mortgagee comes to acquire the mortgaged property though he may have defaulted in payment of rent as there is no causal connection between the default and the acquisition of the mortgaged property by the mortgagee. 5. Question arises how far the above referred two decisions are good law after the decision of the Supreme Court In Smt. Basmati Devi V/s. Chamru Sao ( AIR 1964 SC 1707 ). In that case, both the mortgagor and the mortgagees were liable to pay partly the rent of the holding and defaulted in payment of rent leading to sale in execution of the mortgaged property to the mortgagees. It was observed by their Lordships of the Supreme Court. In that case, both the mortgagor and the mortgagees were liable to pay partly the rent of the holding and defaulted in payment of rent leading to sale in execution of the mortgaged property to the mortgagees. It was observed by their Lordships of the Supreme Court. "In our opinion, the fact that the mortgagor had made a default, does not alter the position that the mortgagee had also defaulted in paying the rent he was liable to pay. By his default he has contributed to the Position that a suit had to be brought for arrears of rent and ultimately to the position that the property was put to sale in execution of the decree obtained in the suit. This contribution to the bringing about of the sale was a direct result of his position as a mortgagee When therefore he purchased the property himself at the sale in execution of the rent decree he clearly gained an advantage by availing himself of his position as a mortgagee." In that case too, there was no finding that there was any fraud or collusion between the mortgagees and the landlord. The ratio decidendi of that case, in my opinion is that where the default by the mortgagee in Payment of the rent contributes to the sale of the mortgaged property in execution of a decree for rent, the mortgagee, if he gains an advantage of that default and acquires the property himself, he as a trustee is bound to restore possession of the mortgaged property to the mortgagor on payment of the mortgaged money. In that case, the mortgagees themselves were the purchasers at the auction sale itself, but even if they would not have been the purchasers at the auction sale itself, that fact, in my opinion could not have made any difference in the decision of their Lordships. There the entire burden of payment of rent was not on the mortgagees and it was argued before their Lordships of the Supreme Court that in the circumstances it could be said that in purchasing the property they took advantage of their position as mortgagees. Repelling this contention their Lordships said that such a construction would put a premium on dishonesty on the part of the mortgagees whenever the entire burden of payment of rent was not left squarely on the mortgages. Repelling this contention their Lordships said that such a construction would put a premium on dishonesty on the part of the mortgagees whenever the entire burden of payment of rent was not left squarely on the mortgages. According to me, if it is held that in absence of any fraud and collusion between the mortgagee and the landlord. Section 90 of the Indian Trusts Act cannot apply to him if he does not purchase the mortgaged property at the action sale itself but acquires it subsequently, then also it would put a premium on his dishonesty because even without any fraud and collusion with the landlord the mortgages may default in payment of rent and thereafter may not attempt to save the mortgaged property from sale specially in cases where the decree is not a rent decree and the mortgage is not going to be extinguished in the hope that he may subsequently acquire the equity of redemption himself more easily from the purchaser at the auction sale be he the landlord or a third party, than from the original mortgagor himself. In my opinion, therefore, where the mortgagee defaults in payment of rent except in cases where his liability to pay is so very small that the property is not ordinarily likely to be brought to sale for that amount and thus contributes to the sale of the mortgaged property and thereafter acquires the entire right in the mortgaged property either by being a purchaser at the auction sale itself or by acquiring the property at a subsequent date from the purchaser at the auction sale. Section 90 of the Trusts Act applies in the case. 6. Section 90 of the Trusts Act applies in the case. 6. The view taken by me in the preceding paragraph is also supported by the language of Section 90 of the Indian Trusts Act itself which reads as follows:- - "Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his Position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested In such property trains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due sharp of the expenses properly incurred and to an indemnity by the same person against liabilities properly contracted, in gaining such advantage." The section does not talk of any fraud or collusion. It applies in case the mortgagee availing himself of his position as such gains an advantage in derogation of the rights of the mortgagor. As already observed, in the case before us the courts below have concurrently found that the appellants were defaulters in the matter of payment of rent. The mortgaged Property was put to sale on that account and ultimately the appellants have pained an advantage availing themselves of their position as mortgagees in derogation of the rights of the mortgagors. The suit, therefore, has rightly been decreed by the courts below 7 It has been contended by Mr. Prasad that we are bound by the Bench decisions of this Court in the cases of Fekua Mahto AIR 1939 Pat 382 and Kewal Surihar AIR 1957 Pat 497 and, therefore, we must either allow the appeal dismissing the suit or refer the matter to a larger Bench if we think that those decisions are not correct. As observed earlier those decisions are also distinguishable because in those cases the mortgaged properties had been sold in execution of rent decrees and mortgage itself stood extinguished. In my opinion, therefore, it is not necessary to refer this case to a larger Bench. 8. In the result, the appeal is dismissed but as no one has appeared before us to contest if without costs. Mukharji, J. 9 I agree.