Short Note : 1. The learned trial Judge found the plaintiff's claim established and passed a decree for Rs. 300 as claimed in the suit. Against this decree, the defendant filed an appeal, which was heard by the Additional District Judge, Barwani. In this appeal also the same contentions were raised, which were negatived by the trial Court. In the appellate Court, the defendant-appellant submitted an application purporting to be under section 151 and Order 41 rule 27 of the Civil Procedure Code along with certain copies of proceedings in execution case between the parties in some previous litigation and urged that since the money due under the mortgage transaction had been fully repaid, the plaintiff was not entitled to claim any decree for arrears of rent, The leaned Judge allowed this application. considered the documents filed by the defendant before him as evidence and came to the conclusion that under the mortgage transaction only a sum of Rs. 300 was due to the plaintiff and for that amount only the plaintiff was entitled to a decree, Thus, instead of deciding the claim made by the plaintiff on the basis of the agreement of lease, the learned Additional District Judge decided the claims of the parties under the mortgage transaction itself. It is against this judgment and decree passed in appeal that the present revision application has been filed. Held : According to the claim as laid by the plaintiff before the trial Court, the only question to be decided between the parties was as to whether under the agreement of lease the amount of Rs. 300 was or was not due from the defendant to The plaintiff. The rights of the parties under the transaction of mortgage were not in issue either before the trial Court or before the appellate Court. On the evidence given by the parties, the Court below could decide as to whether the plaintiff was or was not entitled to claim Rs. 300 as arrears of rent from the defendant. The rights erroneously determined by the learned lower appellate Court in this suit could be decided only in a properly constituted suit either for the enforcement of the mortgage or for its redemption if and when filed by and of the parties to the mortgage transaction. 300 as arrears of rent from the defendant. The rights erroneously determined by the learned lower appellate Court in this suit could be decided only in a properly constituted suit either for the enforcement of the mortgage or for its redemption if and when filed by and of the parties to the mortgage transaction. It is not understood as to how the learned lower appellate Court instead of deciding the only issue regarding the arrears of rent embarked upon an enquiry regarding the rights and liabilities of the parties under the mortgage transaction and gave decision thereon. The course adopted by lower appellate Court has no basis in law and indicative of the fact that the learned judge of the lower appellate Court was under a total misapprehension about the scope of the suit before him. Such a decree as has been given in the appeal can not be maintained on any legal ground. 2. There is yet another aspect of the matter, which requires to be seriously considered. 3. An application under Order 41, rule 27 of the Civil Procedure Code was made by the defendant before the learned lower appellate judge and additional documentary evidence was permitted to be tendered. No opportunity appears to have been given to the plaintiff to be heard on this additional evidence. All that done was that the application was heard along with the merits of the appeal and was allowed, followed by the impugned order and decree. The manner in which this application was disposed of is open to serious objections. 4. So far as the merits of the plaintiff-applicant's claim are concerned, it is clear that under the agreement of lease the defendant had failed to prove that the plaintiff was not entitled to the arrears of rent claimed by him. If, according to the defendant, she paid more that what was due under the transaction of mortgage then she can enforce her claim for refund of the excess payment in a properly constituted suit on the mortgage deed itself. But in the present suit for arrears of rent based on agreement of lease her right as against the mortgage, namely, the plaintiff applicant Champalal could not be determined on any legal basis. But in the present suit for arrears of rent based on agreement of lease her right as against the mortgage, namely, the plaintiff applicant Champalal could not be determined on any legal basis. In my opinion, therefore, when the plaintiff had proved his arrears of rent the learned lower appellate Court had no legal authority to dismiss it and determine the rights of the parties with regard to the mortgage deed or the rights under the mortgage transaction. Revision allowed.