JUDGMENT : S.C. Mohapatra, J. - Plaintiff is the Appellant in this Second Appeal against a confirming judgment. 2. Plaintiff advanced a loan of Rs. 1,000/- to deceased Defendant Purnananda who secured the loan amount by execution of a mortgage deed (Ext. 1) on 11-8-1969 which was registered. When the amount was not paid as stipulated in the deed, Plaintiff filed the suit for declaration of right, title and interest by foreclosing all the rights of the Defendant and to deliver possession of the disputed property or in the alternative for a preliminary decree for payment of the principal with interest amounting to Rs. 1,6201- failing which for realisation of the same by putting the property to sale. 3. Case of the Plaintiff is that the deceased Defendant did not deliver possession despite the terms of agreement in Ext. 1 and, accordingly, as per the term, he becomes the owner of the property. At least he is entitled to the amount advanced with interest. Defendant Purnananda in his written statement claimed that possession of the disputed property was delivered to the Plaintiff who appropriated the usufructs through her bhag tenant Bhramar. It was asserted that Plaintiff appropriated the crops for seven years and accordingly, the mortgage stood discharged u/s 17 of the Orissa Money Lenders Act, 1939 (hereinafter referred to as 'the Act'). On the death of Purnananda, the substituted Defendants, the sons and daughter of Purnananda filed a written statement to the same effect. 4. Two witnesses were examined by the Plaintiff and three witnesses were examined by the Defendants. Plaintiff proved the mortgage deed (Ext. 1) and Defendants proved certified copy of the decree in another suit for money (Ext. A). Trial Court on assessment of evidence held that Plaintiff was possessing the land through D.W. 3 Bhramar and appropriated the usufructs for seven years. Accordingly, the mortgage stood discharged u/s 17(1) of the Act. In appeal by the Plaintiff, learned District Judge held that the mortgage being in the month of August when crop was standing, after harvest crop was handed over and Plaintiff continued in possession till end of 1976 where after Defendants have taken back possession and accordingly, dismissed the appeal against which this Second Appeal has been held by the Plaintiff. 5. 5. u/s 100(3), Code of Civil Procedure, the memorandum of appeal is to precisely state the substantial question of law involved in the appeal. Under Sub-section (4) there of High Court if satisfied that a substantial question of law is involved in any case, it shall formulate that question and as provided in Sub-section (5) the appeal is to be heard on the question so formulated. Order 41 Rule 11, CPC provides that appeal is to be heard on admission. Order 42, Rule 1 provides that the provisions of Order 41 shall be applicable to Second Appeals. Thus, the question of la w is to be formulated by the High Court at the stage of admission. This Court while admitting the appeal passed the following order: Ground No. 4 is certified to be raising a substantial question for hearing this appeal. Admit. Ground No. 4 in the memorandum of appeal reads as follows: For that the learned Court below has acted illegally and erroneously in not directing his attention to the interpretation of the mortgage document Ext. 1 and coming to a finding that it is a possessory mortgage. It is submitted that the deed not provide that the usufruct shall be adjusted either to interest or principal and in the absence of any such condition the said Ext. 1 cannot be held to be a possessory mortgage contemplated u/s 17 of the O.M.L. Act. 6. Mr. M.M. Das, learned Counsel for the Appellant submitted that Courts below have not considered whether the mortgage in Ext. 1 is a possessory mortgage under the, Act to attract Section 17 of the Act. He relied- upon the Explanation to Section 17 to urge that a mortgage on conditional sale as Ext. 1 does not provides for the requirements of the explanation and, accordingly, Section 17 has no application to the facts of the case. Mr. S.K. Das, learned Counsel, however, submitted that in absence of any definition of possessory mortgage in the Act or in the Transfer of Property Act any mortgage whereunder possession is delivered to the mortgagee is a possessory mortgage to attract Section 17 of the Act. 7. In view of the rival contentions Section 17 is to be kept in the fore - front, so that the rival contentions can be effectively considered: 17. 7. In view of the rival contentions Section 17 is to be kept in the fore - front, so that the rival contentions can be effectively considered: 17. Discharge of possessory mortgages: (1) Notwithstanding anything having, the force of law or in any contract, any possessory mortgage which is executed either before, or after the commencement of this Act shall unless discharged previously, stand discharged after the expiration of a period of seven years from the date of the mortgage. (2) On the discharge of the mortgage as aforesaid, the mortgagee shall deliver to the mortgagor all documents in his possession or power relating to the mortgaged property and shall retransfer the property to the mortgagor and put him in possession thereof at his cost free from the mortgage and form all encumbrances created by him and those claiming under him within three months from the date of expiry of the aforesaid period of seven years; Provided that in cases where the said period of seven years has expired prior to the 22nd day of September, 1975, the delivery of documents and the delivery of possession of the property as aforesaid shall be affected within three months from the said date. (3) In case of the death of the mortgagor before the delivery of possession the mortgagee shall deliver possession of the documents and the mortgaged property to the successor-in-interest of the mortgagor. (4) Where the mortgagor is unable to ascertain or is in doubt as to who is the successor-in-interest, he shall make an application within the period allowed for delivery of possession, to the Court which is competent to entertain a suit in respect of mortgaged property for taking over possession and management of the property and thereupon the provision contained the Order XL of the Code of Civil Procedure, 1908 shall so far as may, apply. (5) Any person claiming be the successor-in-interest of the mortgagor may apply to the Court within twelve years from the date of appointment of the receiver for possession of property whereupon the Court shall determine if the applicant or any other person is the successor-in-interest and for the said purpose the Court shall, as far as may be, follow the procedure provided in Part X of the Indian Succession Act, 1925. (6) After such determination, the Court shall deliver possession of the property along with the documents and the amount, if any, which has accrued from the income of the property to the person who is found by the Court, to be the successor-in-interest. (7) If no application is made under Sub-section (5) within the period specified therein or if such an application being made no person is found to be the successor-in-interest and the said period has already elapsed the property along with the amount if any has accrued from its income shall lapse to the State, Government. Explanation-For the purpose of this section any mortgage in pursuance of which the mortgagee is in possession and enjoyment of the mortgage security in satisfaction of the mortgage debt either in whole or in part shall be decreed to be a "possessory mortgage"). 8. It has been laid down by a division bench of this Court in Indian and General Investment Trust Ltd. v. Raja Shri Ramchandra Mardaraj Deo and Anr. ILR 1963 Cutt. 114 that three essential facts are to be established for a mortgage to core within the meaning of possessory mortgage u/s 17 of the Act. They are: (i) The mortgagee must be in possession and enjoyment of the mortgaged security. (ii) Such possession, and enjoyment must be in pursuance of the mortgage ; and (iii) Such possession and enjoyment must be in satisfaction of the mortgage debt either in whole or in part. In the present case, Ext. 1 provided that the date of execution of the deed. i.e. 11-8-1969. the mortgagee shall remain in possession of the disputed property and enjoy the usufructs and in case within four years entire amount received by the mortgagor is paid back to the mortgagee, the property along with the document shall be returned back by the mortgagee and failing payment as stipulated the mortgage with conditional sale shall become a sale deed and mortgagee shall become the owner of the property. In case any person creates trouble with possession of the mortgagee, the mortgagor shall pay back the loan amount with legally admissible interest. D.W. 1 stated that after the mortgage, Bhramar Mohanti (D.W. 3) was occupying the suit land on behalf of the Plaintiff. He cultivated the land for six years. In case any person creates trouble with possession of the mortgagee, the mortgagor shall pay back the loan amount with legally admissible interest. D.W. 1 stated that after the mortgage, Bhramar Mohanti (D.W. 3) was occupying the suit land on behalf of the Plaintiff. He cultivated the land for six years. On the 7th year Defendants paid the usufructs to the Plaintiff and for last two years they were possessing and cultivating the suit lands. D.W. 3 Bhramar Mohanty stated that be cultivated the land for six years about 2 years before. He was called and asked to cultivate the land on bhag and both P.W. 1 and deceased Defendant Purnananda gave delivery of the land to him. He delivered possession to Purnananda as be forcibly took possession. He informed the fact to P.W. 1. Purnananda died on 7-9-1977. Thus, possession must have been taken by him before that. In the written statement of Purnananda filed on 19-11-1976 it was stated that Plaintiff took seven paddy crops for seven years. Thus, by April, 1976 when the agricultural year Plaintiff according to Purnananda took seven crops, on 11-8-1969, there was crop on the land. Accordingly, possession could not have been delivered in the year 1970. Bhramar cultivated for six years. Thus, Bhramar cultivated till April 1976 as sixth cultivation from 1970 would be in April, 1976. Purnananda forcibly took possession from Bhramar. Thus, in or about April, 1976 Purnananda took possession. Keeping these facts and the law as laid down by the Division Bench in Indian and General Investment Trust Ltd. v. Raja Shri Ramchandra Mardaraj Deo and Anr. (supra) It is to be examined bow far Section 17(1) of the Act is attracted. 9. Expression in the mortgage deed that possession would be given does not make the mortgage a possessory mortgage. As has been held by the Division Bench the mortgagee must be in possession. Thus, the mortgage becomes possessory mortgage from the date mortgagee comes into possession of the land given as security for the loan. In this dispossession of Bhramar from 1970 would make the mortgage a possessory mortgage. Prior to it, the mortgage shall be treated to be a mortgage with conditional sale and not a possessory mortgage. u/s 17(1) of the Act on completion of seven years, a possessory mortgage stands discharged. In this dispossession of Bhramar from 1970 would make the mortgage a possessory mortgage. Prior to it, the mortgage shall be treated to be a mortgage with conditional sale and not a possessory mortgage. u/s 17(1) of the Act on completion of seven years, a possessory mortgage stands discharged. A possessory mortgage losses its character of such mortgage no sooner possession is taken away by the mortgagee. On completion of six years, Purnananda took away possession from Bhramar (D.W. 3), who was possessing on behalf of the Plaintiff. Thus, before expiry of seven years, possessory mortgage lost its character of such mortgage and there was no scope for discharge of the same u/s 17(1) of the Act. 10. Next question for consideration is whether by loss of character of possessory mortgage, Plaintiff gets the right to recover the entire loan amount. Provision u/s 17 of the Act is a protective legislation for the benefit of the debtors. Legislature in its wisdom decided that possession for seven years by the mortgagee would have the effect of discharge of the mortgage. Thus, annual yield for seven years received or receivable by the mortgagee with possession of the land was provided to be sufficient to discharge the loan with interest. On this basis for any misconduct of the debtor if the mortgagee suffers there may be penal consequences or a suit for damages may lie if the facts so disclose. Under the Act, there being no prohibition with penalty for violation thereof, Section 17 cannot be interpreted to be penal in character. Accordingly, the finding of fact that the Plaintiff was in possession of the mortgaged land for six years, there would be proportionate reduction of the debt. In absence of any other provision in the Act, it shall be deemed that 6/7th debt with interest has been discharged. Balance 1/7th debt with interest is to be paid by the mortgagor. Thus comes to Rs. 231/-. 11. In the result, the appeal is allowed in part the suit is decreed to the extent of Rs. 231/- only. Unless the amount is paid within two months from today the Plaintiff shall be entitled to recover the same with interest at 9% from the date of filing of the suit till recovery. Deposit in the Court shall amount to payment. The suit is, accordingly, decreed in part with proportionate costs. Appeal partly allowed. 231/- only. Unless the amount is paid within two months from today the Plaintiff shall be entitled to recover the same with interest at 9% from the date of filing of the suit till recovery. Deposit in the Court shall amount to payment. The suit is, accordingly, decreed in part with proportionate costs. Appeal partly allowed. Final Result : Allowed