CHOPRA, J.- This second appeal is directed against the appellate judgement of the learned Civil Judge, Chittorgarh dated 26.9.1978 whereby he has upheld the judgement of the learned Munsif, Nimbaheda dated 13.9.1974 dismissing the suit for possession of the mortgage land filed by the plaintiff-appellant. (2) In this case, a suit was brought by Samastha Panch, Jain Swetamber Sthanakwasi (Bais Sampradaya ) Bhadsoda in representative capacity through Shri Mohanlal Jain and Shri Bhanwarlal Jain residents of Bhadsoda against defendant Motilal Son of Hemraj Sewak pleading interalia that a house with Guwadi situated in village Bhadsoda, the boundaries of which have been given in para No. 2. of the plaint belonged to one Devilal Gokhru, who died in Smt. 2017. This house was mortgaged with defendant Hemraj and his sons Motilal and Udailal. On the death of Devilal, his sons Mangilal, Ratanlal and Bhanwarlal became the owners of this property and the equity of redemption came to rest in them. They gifted this property to the plaintiff on Chet Sudi 13, Samvat 2013. It is alleged that on 15.2.1967, on behalf of the plaintiff, one Shri Nanalal Lodha paid a sum of Rs. 1051/- to the defendant and after recording the receipt of this amount in the Bahi of plaintiff Samaj, the defendant agreed to keep this house in his possession for two years and thereafter, he agreed to vacate it. However, a registered gift deed was executed in favour of the plaintiff Samaj by Mangilal, Ratanlal and Bhanwarlal, sons of Shri Devilal Gokhru on Jeth Badi 11, Samvat 2028 i.e. on 20.5.1971. It is alleged that Mangilal, Ratanlal and Bhanwarlal omitted to mention the factum of mortgage and, therefore, one more gift deed was executed on 28.1.1972, in which the factum of mortgage was also mentioned. (3) According to the plaintiff, the defendant is a licence of this house since 15.2.1967 and that licence came to an end on 15.2.1969 and, therefore, the plaintiff is entitled to the possession of this house alongwith mesne profit @ Rs. 10/- per month. In this case, the suit was filed on 3.4.1972. (4) A written statement was filed on behalf of the defendant on 29.7.1972. According to the defendant, Shri Devilal Gokhru mortgaged this house with him on Chet Sudi 9 Samvat 1983 for a sum of Rs. 335/- and possession of the suit house was given to him. 10/- per month. In this case, the suit was filed on 3.4.1972. (4) A written statement was filed on behalf of the defendant on 29.7.1972. According to the defendant, Shri Devilal Gokhru mortgaged this house with him on Chet Sudi 9 Samvat 1983 for a sum of Rs. 335/- and possession of the suit house was given to him. Therefore, it is alleged that a sum of Rs. 101/- were paid to Shri Devilal and, therefore, he executed a sale deed in favour of the defendant and his sons. It was submitted that from Chet Sudi 9 Samvat 1983, the defendant and his sons are living in this house as owners. According to the defendant, when this house did not belong to Mangilal, Ratanlal and Bhanwarlal, they could not have executed any gift deed in favour of the defendant either on Chet Sudi 13, Samvat 2013 or on 28.1.1972. The alleged amount of Rs. 1051/- was never paid to him and when possession of the suit house was never handed over to the plaintiff and the defendant was living in it as owner of this house, his rights are not affected by any gift deed by the heirs of late Devilal Gokhru. It is alleged that Devilal himself filed a suit for redemption of the mortgage, which was registered as Civil Original Suit No. 103 Samvat 2002 in the Court of Munsif Bhinder and in that suit, on behalf of the defendant, a plea was taken that he is the owner of this house. That suit was dismissed as withdrawn on 17.6.1947 and, therefore, defendant Hemraj and his sons Motilal and Udailal are using this house as owners and so, their adverse possession has ripened on this house. According to the defendant Motilal, his brother Udailal is a co-mortgagee in this house and, therefore, without impleading him as a party to this suit, this suit cannot proceed. (5) According to the defendant, the sale deed dated 15.2.1967 was got executed from them by using coercion and undue influence i.e. that they will be ostracized and nobody will participate in the funeral of their father. It was submitted that in the mortgage deed, the right to redeem has been granted in the mortgagor after 51 years and, therefore, upto 31.12.1970, the suit for redemption could not have been brought. It was submitted that in the mortgage deed, the right to redeem has been granted in the mortgagor after 51 years and, therefore, upto 31.12.1970, the suit for redemption could not have been brought. The equity of redemption was only kept for 51 years and, therefore, the suit cannot be brought after 31. 12.1970 because right to redeem the mortgage has been extinguished as the earlier suit was got dismissed without any liberty to file a fresh one and, therefore, this suit is barred by resjudicata under 0.23 r.l C.P.C. and if the limitation of 51 years is allowed to stand then that period is not yet over and, therefore, the suit is pre-mature. (6) On the basis of these pleadings of the parties, in all 11 issues were framed. The learned Munsif treated this suit as a dual suit i.e. suit for redemption as also suit for possession and treating it a suit for redemption, he proceeded to decide issues No. 6 and 8 ahead of all other issues. (7) Issue No. 6 related to the applicability of the principle of res-judicata and issue No. 8 related to the plea whether Udailal, brother of defendant Motilal who is a co-mortgagee in the suit house is a necessary party and without impleading him, the suit cannot proceed? Issues No. 6 and 8 were decided against the plaintiff and in favour of the defendant. While deciding issue to 5, the learned Munsif held that it has not been proved by the defendant that the suit house has been sold to them by Devilal and, therefore, they are only mortgagees in possession of the house. Issue No. 7, which related to adverse possession was also decided against the defendant. As regards issues NO. 1,2 and 9, it was held that the defendant has not been paid a sum of Rs. 1051/- and, therefore, Ex.1 has not been acted upon. Moreover, it has been held that this document Ex.1 was got executed by Motilal by using coercion and undue influence and, therefore, such an agreement is unenforceable. As regards Issues No. 3 and 4, it has been held that although, the equity of redemption can be transferred through the gift deed but keeping in view the decisions of Issues No. 1,2,5,6,7,8 and 9, the plaintiff cannot get possession of the suit house and, therefore, the suit was dismissed. As regards Issues No. 3 and 4, it has been held that although, the equity of redemption can be transferred through the gift deed but keeping in view the decisions of Issues No. 1,2,5,6,7,8 and 9, the plaintiff cannot get possession of the suit house and, therefore, the suit was dismissed. (8) On appeal, the learned Civil Judge has held that although, the agreement Ex.1 has been executed by defendant in favour of the plaintiff but the amount mentioned in Ex.1 i.e. Rs. 1051/- has not been paid to the defendant by the plaintiff and, therefore, while holding the execution of the document Ex.1 as proved, he has held that issue No. 2 has rightly been decided in favour of the defendant and against the plaintiff. The decision of the learned trial court as regards issue No. 5 which related to the sale of the house in favour of the defendant by Devilal Gokhru has been upheld. The findings of the learned trial court on issues No. 5,6,7,8 and 9 have also been upheld. While deciding issue No. 9, it has been held that the suit is within limitation because the execution of the agreement has been proved. However, while deciding issue No. 4, the learned Civil Judge has also held that the plaintiff is not entitled to redeem the suit house from mortgage. The learned Civil Judge has dismissed the appeal vide his judgement dated 29.6.1978. Hence this second appeal under s. 100 C.P.C. (9) I have heard Mr. Suresh Shreemali, the learned counsel appearing for the plaintiff-appellant and Mr. S.R. Bhandari, the learned counsel for defendant-respondent and have also carefully gone through the record of the case. (10) While admitting this appeal on 24.4.1979, the following substantial questions of law which arise in this appeal for determination were framed : — (1) Has the lower appellate Court committed an error of law when it held that the suit for possession is barred as a previous suit for redemption was withdrawn under 0.XXIII, r.1 C.P.C. in respect of the same property? (2) Whether on the facts and in the circumstances of the case, the lower appellate court was not right in holding that Udailal, co-mortgagee is a necessary party to the suit? (11) It was contended by Mr. (2) Whether on the facts and in the circumstances of the case, the lower appellate court was not right in holding that Udailal, co-mortgagee is a necessary party to the suit? (11) It was contended by Mr. Suresh Shreemali, the learned counsel appearing for the plaintiff-appellant that in this case, the learned Munsif has treated it to be a suit for redemption of mortgage as also a suit for possession and it was because of this that Issues No. 6 and 8 have been framed. That contention has been upheld even by the first appellate court and, therefore, definitely it is a suit for redemption of mortgage. According to Mr. Shreemali, in such a suit which is based on cause of action relating to redemption of mortgage, the provisions of 0.XXIII, r.l C.P.C. does not apply. A mortgage can always be redeemed till the mortgage subsists. The filing of earlier suit by Devilal and its dismissal as withdrawn without liberty to file a fresh one will not bar the present suit. In support of his submission, Mr. Shreemali has placed reliance on a decision of the Privy Council in Raghunath Singh vs. Mt. Hansraj (1), wherein it has been observed: — "that the right to redeem is a right conferred upon the mortgagor by enactment, of which, he can only be deprived by means and in manner enacted for that purpose, and strictly complied with. The provision in a decree in a suit for redemption that in case of default by the plaintiff in payment his case will stand dismissed cannot be construed as meaning that the plaintiff was to be debarred of all right to redeem and that the decree was an order of a Court extinguishing the right to redeem within the meaning of the proviso to s. 60, T.P. Act. A second suit for redemption will be maintainable in such cases". It was further observed : "that unless it could be said that a decree involved a decision that the mortgagors right to redeem was extinguished, it cannot operate by way of res-judicata so as to prevent the Courts, under s. 11 C.P.C. from trying a second redemption suit." Raghunath Singhs case (supra) came up for consideration before the Federal Court in Thota China Subba Rao and Others vs. Mattapalli Raju & Ors. (2), wherein the Federal Court has observed : "that the right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage itself subsists. The right of redemption can be extinguished as provided in s. 60 and when it is alleged to have been extinguished is so extinguished, a second suit for redemption by a decree the decree should run strictly in accordance with the form prescribed for the purpose. Unless the equity of redemption by the mortgagor, if filed within the period of limitation, is not therefore barred. If the mortgagee fails to establish that the old decree extinguished the right to redeem, there is no ground for saying that the old decree operates as res-judicata and the Courts are prevented from trying the second suit under s. 11 Civil P.C. Provisions like 0.9, r.9 or 0.23 r. 1 will not debar the mortgagor from filing a second suit for redemption because, as in a partition suit, the cause of action in a redemption suit is a recurring one. The cause of action in each successive action, until the right of redemption is extinguished or a suit for redemption is time barred, is a different one." My attention was next drawn to a Division Bench decision of this Court in Ambalal vs. Ambalal (3), wherein it has been held: "that in a case of redemption, a fresh cause of action comes into play so long as the right to redeem (which is a matter of substantive right) remains in tact and has not been extinguished though it might have resulted in a decree in an earlier suit which for some reason or another remained unsatisfied. When once it is held that a second suit be lawfully brought, it must further be held that the comparatively subordinate considerations of procedural law, namely, that a second suit is barred by the principle of res-judicata or that the mortgage has become merged in a decree and is, therefore, not available as the foundation of a second suit must necessarily give way to the paramount consideration that so long as the right to redeem is not extinguished effectively either by act of parties or by an order of the Court, the right to redeem must receive its natural and full play." Thus, filing of the second suit in respect of the earlier decree which remained unsatisfied is not barred by the principle of res-judicata. (13) My attention was lastly drawn to a decision of their lordships of the Supreme Court in M.R. Patil vs. S.B. Rainade (4). That was a case, in which the mortgagors filed a suit for redemption of mortgagee. A preliminary decree for redemption was passed. The mortgagors failed to make payment within the specified period under the preliminary decree, on an application made by the mortgagee, a final decree for sale was passed in the suit. Although, the final decree for sale of the mortgaged property was passed, the mortgagee did not execute the final decree and allowed the same to be time barred. The mortgagee and after him, his heirs and legal representatives, however, continued to be in possession of the mortgaged property. Subsequently, the successors-in-interest of the original mortgagors filed a second suit for redemption of the mortgagee. It was claimed by them that inspite of the passing of the final decree for sale in the earlier suit, the mortgage still subsisted and that they were entitled to redeem the same and got possession of the mortgaged property. In those facts, it was held that the plea that as a final decree was passed in the earlier redemption suit, there was a merger of the mortgage-debt in the decretal debt and as such, the second suit for redemption was barred would not be sustainable. (13) The upshot of the aforesaid discussion is that the right of redemption is a substantive right and it subsists till the mortgage itself subsists. (13) The upshot of the aforesaid discussion is that the right of redemption is a substantive right and it subsists till the mortgage itself subsists. Unless the right of redemption is extinguished as provided by S. 60 of the Transfer of Property Act or in any other manner provided by law, it is neither extinguished by withdrawal of a suit without making a prayer for filing afresh suit nor it is extinguished on account of passing of a decree which extinguishes the mortgage itself or a right to redemption. The cause of action in a redemption suit is a recurring one. Thus, till right to redeem is not extinguished effectively either by the act of the parties or by the order of the Court, the right to redeem subsists and can be acted upon. (14) Thus, in this case, simply because an earlier suit was filed by Shri Devilal and that was got dismissed as not pressed, it does not bar the second suit and, therefore, the plea of 0.XXIII, r. 1 or O.IX, r.9 C.P.C. is not available to the defendant. In this view of the matter, I am firmly of the view that the learned lower courts were wrong in holding that equity of redemption has extinguished. Issue No.6 has wrongly been decided in favour of the defendant and against the plaintiff. (15) Now, the second important question of law that has been raised in this appeal is that Udailal, the real brother of defendant Motilal has not been made party to the suit. The mortgage deed clearly shows that the mortgage was executed in favour of defendant Hemraj and his sons Motilal and Udailal. Hemraj has expired and Udailal has been examined by the plaintiffs as their witness as P.W. 8 and he has categorically stated that the suit house is in possession of defendant Motilal and it is not in his possession. He has further stated that defendant Motilal has voluntarily executed the document Ex.A.l in favour of the plaintiff and, therefore, he has no interest whatsoever in this suit house because he was separated by his father in his life time. Thus, Udailal has abandoned his claim so far as this mortgage is concerned. The contention of Mr. He has further stated that defendant Motilal has voluntarily executed the document Ex.A.l in favour of the plaintiff and, therefore, he has no interest whatsoever in this suit house because he was separated by his father in his life time. Thus, Udailal has abandoned his claim so far as this mortgage is concerned. The contention of Mr. S.R. Bhandari, the learned counsel for the defendant-respondent is that Udailal being a co-mortgagee is a necessary party to the suit and without impleading him as a party to the suit, the suit should be dismissed. In support of his submission, he has placed reliance on a decision of the Allahabad High Court in Umma Saghir V. District Judge, Gorakhpur (5), wherein it has been held that no doubt under 0.1, r.9 no suit can be defeated by reason of mis-joinder or non-joinder of parties, but it is not applicable to a case where necessary party has not been impleaded as defendant-in-view of proviso to 0.1., r.9 of Civil P.C. In case, it is found that certain persons who are necessary parties to the suit have not been impleaded in the suit, the suit may not proceed on that ground. (16) O.1. R.9 C.P.C. provides that no suit shall be defeated by reason of the misjoinder of non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. This is a general provision to which a proviso has been added by C.P.C. (Amendment) Act, 1976 which came into force with effect from 1.2.1977. Proviso to 0.1, r.9 C.P.C. reads as under .- "Provided that nothing in this rule shall apply to non-joinder of a necessary party." It may be stated here that this proviso has been added to 0.1. r.9 C.P.C. with effect from 1.2.1977 whereas this suit has been filed on 3.4.1972 when this proviso was not in existence in the C.P.C. and, therefore, if Udailal has not been impleaded as a party to the suit, the suit will be governed by the provisions of 0.1., r.9 C.P.C. which were existing on 3.4.1972. Thus, Umma Saghirs case (supra) is not of much help to the case of the defendant-respondent. Thus, Umma Saghirs case (supra) is not of much help to the case of the defendant-respondent. (17) My attention was next drawn to a decision of their lordships of the Supreme Court in Profulla Chorone vs. Satya Choron (6), wherein it has been held that the suit by some only of the trustees was not properly constituted and must be dismissed. This authority does not relate to a case of redemption of mortgage. (18) However, Mr. Suresh Shreemali, the learned counsel appearing for the plaintiff-appellant has drawn my attention to a decision of this Court in Dwarka Pd. vs. Gopinath (7), wherein a Division Bench of this Court has observed: — "Order 34, r.l is a rule of mere procedure and it is controlled by the provisions of 0.1., r.9. A suit for the enforcement of the mortgage security or for the redemption of mortgage is not necessarily liable to dismissal if all persons having an interest either in the mortgage security or in the right of redemption have not been made parties. If an effective decree can be passed and rights of these parties not before the Court can be properly safeguarded even in the absence of some of the parties, suitable relief shall not be denied to the plaintiffs. In some cases, it is possible that in the absence of the interested parties, Courts may not be able to give such a relief and so, the presence of all the parties interested might be insisted upon. It is not the law in India that one of several mortgagors cannot redeem more than his share unless the owner of the other shares consent or do not object. Subject to proper safeguarding of the right to redeem which these owners may possess, one of several mortgagors can redeem the entire mortgage. Thus even when no consent has been obtained of all the mortgagors only some of the mortgagors can redeem the mortgage. If, however, such consent has been obtained then the case of redemption by some only of the mortgagors would be much stronger. In a suit for redemption, the defendants contended that one of the sons of the mortgagors who was a necessary party was not joined as a party and that the suit therefore did not lie. It was found that the redemption suit was being conducted by this son as a Mukhtiar Khas of the plaintiffs. In a suit for redemption, the defendants contended that one of the sons of the mortgagors who was a necessary party was not joined as a party and that the suit therefore did not lie. It was found that the redemption suit was being conducted by this son as a Mukhtiar Khas of the plaintiffs. In the witness box, he gave out that he had been adopted in another family and that he had no interest in the mortgaged property and that he did not want any safeguarding of his rights, that ever if he had any interest, he consented to the bringing of the suit for redemption of the entire property by the plaintiffs." Thus, it is clear that if an effective decree can be passed and the rights of the party not before the Court can be safeguarded, suitable relief shall not be denied to the plaintiffs. (19) Mr. S.R. Bhandari, the learned counsel for the defendant-respondent has contended that in this authority, the mortgagors not being made parties to the suit was a point at issue whereas in this case, the mortgagee has not been made party to the suit and, therefore, the ratio of this authority will not apply to this case. I am unable to accept this contention of Mr. Bhandari because the ratio of this authority is that if an effective decree can be passed and the rights of party not before the Court can be safeguarded, suitable relief shall not be denied to the plaintiffs. (20) My attention was next drawn to a Division Bench decision of the Patna High Court in Siaram Singh vs. Jugutdeosingh (8), wherein it has been observed as follows : — "The combined effect of 0.1, r,9 and 0.34 r. 1 in so far as mortgages are concerned is that all persons whose rights and interest may be adjudicated upon and determined in the suit ought to be added as parties but that failure to add one or more such persons should not have the effect of defeating the suit if the Court, in their absence can deal with the matters in controversy so far as regards the rights and interests of the parties, actually before it. If the rights of the parties actually before the Court can be determined in the suit leaving the rights and interests of others unaffected then, even though the other parties might properly have been added, the Court should determine the matters in controversy between the parties actually present. In order to decide whether a suit can proceed in the absence of certain proper parties, two tests have been laid down: (1) can the rights of the parties on the record be fully determined in their absence ; and (2) can that determination be made necessarily affecting the rights of those absent. In this case, Shri Udailal has categorically stated that he has no interest in the mortgaged property as he has already been separated by his father in his life time and, therefore, defendant Motilal who is in possession of the suit property and has executed the document Ex.A.l, the execution of which has been held as proved by the courts below alone has a subsisting interest in the suit property and an effective decree can be passed against him even without impleading Udailal who does not claim any interest in the suit property. Thus, this authority applies on all fours to the case in hand. (21) Reliance was also placed on a decision of this Court in Khubilal v. Maloomsingh (9), wherein it has been held that in a suit by a puisne mortgagee against the prior mortgagee, broadly speaking the original mortgagor is a necessary party though there may be exceptional cases where this may not hold good and it may be possible for the Court to deal with the matter in controversy as regards the rights and interests of the parties actually before it. It was further held that it was a case where an effective decree could be passed even though the original mortgagor was not joined as a defendant in time. It was further held that it was a case where an effective decree could be passed even though the original mortgagor was not joined as a defendant in time. (22) In Chhaganlal vs. Naraindas (10), their lordships of the Supreme Court have observed that it is a well recognised principle that even if all the mortgagees are not before the Court in a suit filed by the mortgagor for redemption of the property, but the mortgagor is prepared to pay the entire amount due at the foot of the mortgage to such mortgagees as are before the Court and gives up his right under the mortgage as against those mortgagees who are not before the Court, the Court can pass a decree for redemption directing that the entire mortgage amount should be paid to the mortgagees who are actually before the Court. In para 19 of the judgment, it has further been observed by their lordships of the Supreme Court that if a defendant does not contest the suit at any stage, he will not be a necessary party in an appeal. (23) It is the trite law that a suit can not proceed, if necessary parties are not before the Court but a suit is not liable to dismissal for want of the presence of a necessary party or parties if effective decree can be passed and rights of those parties not before the Court can be properly safeguarded or even in absence of some of the parties, suitable relief can be granted to the plaintiffs. 0.34, r.l C.P.C. is a rule of mere procedure and it is controlled by the provisions of 0.1 r.9 C.P.C. but even a combined effect of 0.1, r.9 and 0.34 r. 1 C.P.C. so far as mortgage suits are concerned will not debar the court from passing an effective decree, if the rights and interest of the parties present before the Court can be adjudicated upon and determined effectively. If a necessary party relinquishes its claim as regards the property involved in a mortgaged suit then, he does not remain a necessary party in an appeal and even in his absence, a mortgage suit can be decided and relief can be granted to the party who seeks it. A person may be a necessary party in a court in a suit but he may not be a necessary party in the appeal. A person may be a necessary party in a court in a suit but he may not be a necessary party in the appeal. As stated above, in this case, Udailal brother of defendant Motilal has not contested the suit. He has not set up his claim for any share in the redemption-amount. Rather, he has stated that he was separated by his father in his life time and the suit house is in possession of defendant Motilal. He has not put forth claim for a share in the redemption amount. Rather, he has appeared as a witness of the plaintiffs. Under these circumstances, I hold that Udailal, the real brother of defendant Motilal is not a necessary party to this suit. Thus, the learned lower courts have erred in deciding issues No. 6 and 8 against the plaintiffs and in favour of the defendant. (24) It may be stated here that the concurrent finding of the courts below, that the mortgage subsists has not been challenged before me. In this case, the defendant has come up with a case that he being a mortgagee in possession, his adverse possession has ripened and secondly, that the property has been sold to him. The Courts below have categorically held that he is not a purchaser of the suit house. He is only a mortgagee in possession of the suit house and his possession is not adverse to the plaintiffs in view of execution of document Ex.A.l having been proved against him. The period of 51 years have now expired and even prior to that, the suit for redemption of mortgage could have been filed. (25) It was argued by Mr. S.R. Bhandari, the learned counsel appearing for the defendant-respondent that since the plaintiff has claimed that the defendant is a licence in the suit house, the decree for redemption of mortgage cannot be granted in favour of the plaintiff. This contention has been seriously opposed by Mr. Suresh Shreemali, the learned counsel for the appellant. He has submitted that a plaintiff may rely upon different rights alternatively and there is nothing in the C.P.C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. This contention has been seriously opposed by Mr. Suresh Shreemali, the learned counsel for the appellant. He has submitted that a plaintiff may rely upon different rights alternatively and there is nothing in the C.P.C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. Ordinarily, the Court cannot grant relief to the plaintiff on a case for which there was no foundation laid in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. In this respect, he has placed reliance on a decision of their lordships of the Supreme Court in Firm Srinivas Ram vs. Mahabir Pd. (11). In this case, both the courts below have held that the plaintiff has taken the alternative plea of mortgage as against the claim for possession on the basis of the licence. The defendant has further claimed that suit house has been sold to him. The defendant has categorically claimed that the suit house has been mortgaged with him and his father and brother by Devilal and they have purchased it later on but that factum of purchase has been disbelieved by the courts below. Even if the status of the defendant as licence is not held as proved then too, the plaintiff can fall back on his alternate plea of redemption of a subsisting mortgage, which has not only been canvassed by him by inference but has been categorically put forth as a defence by the defendant. It has been held by the courts below that the suit is not time barred. It has further been held that the mortgage subsists. When it has not been the case of anybody that the equity of redemption has been extinguished, the plaintiff-appellant is entitled to a preliminary decree for redemption of mortgage. It has been held by the courts below that the suit is not time barred. It has further been held that the mortgage subsists. When it has not been the case of anybody that the equity of redemption has been extinguished, the plaintiff-appellant is entitled to a preliminary decree for redemption of mortgage. (26) In the result, this appeal is allowed, the judgements of the learned Munsif, Nimbaheda dated 13.9.1974 and the learned Civil Judge, Chittorgarh dated 26.9.1978 are set aside and a preliminary decree is passed in favour of the plaintiff-appellant and against the defendant-respondent for redemption of the suit house from mortgage in the following terms: — (a) that an account be taken of what is due to the plaintiff upto the date of the preliminary decree as principal and interest. The plaintiff will not be entitled to any costs of the suit. However, he will be entitled to other costs, charges and expenses properly incurred by him upto the date of preliminary decree in respect of his mortgage security, if that has been done under the terms of the mortgage deed or with the consent of the mortgagee or his successor in interest ; (b) that the plaintiff shall deposit a sum of Rs. 335/- as principal within a period of one month from today. The defendant mortgagee is not entitled to any interest because he is enjoying the property and there is no claim put forth by the defendant that he has incurred any expenses on the upkeep of the house. The costs of the courts below shall be easy. If this amount is not deposited in the Court of learned Munsif, Nimbaheda within one month from today, the defendant shall deliver possession of the suit house to the plaintiff or to such person as the plaintiff appoints and he shall also deliver all documents in his possession or power relating to the mortgaged property and shall, if so require re-transfer the property to the plaintiff at the cost of the plaintiffs free from the mortgage and from all other incumbrances if any created by the defendant or any person claiming under him. (27) The appeal stands disposed of accordingly. Let the record of the case be sent back to the learned lower court forthwith.