JUDGMENT
Muhammad Rafiq and Piggott, JJ.
1. This is a second appeal by certain judgment-debtors in an execution case. The suit in which the decree in question was passed was a suit for foreclosure on a mortgage by conditional sale, dated the 11th of March, 1877. There was a long array of defendants; but for the purposes of this appeal it is sufficient to say that the first defendant was the heir of the original mortgagor, whereas another set of defendants, who are now appellants before us, were the heirs of one Gopal Rao, who acquired by a transfer subsequent to the mortgage of 1877 a portion of the equity of redemption. Before the court in which the suit was instituted the defendants of both these sets pleaded that they were members of an agricultural tribe within the meaning of the Bundelkhand Alienation of Land Act (Local Act II of 1903). The court held that this was a point to be considered after a preliminary decree for foreclosure had been passed, and such a decree was passed on the 26th of January, 1910. When the decree-holder applied for a decree absolute, the court ‘ recorded an order to the effect that inasmuch as the judgment debtors appeared to be members of an agricultural tribe, the case must be referred to the Collector Under Clause (3) of Section 9 of the Bundelkhand Alienation of Land Act. As regards the first defendant, the heir of the original mortgagor, his case has been dealt with by the Collector under the section above referred to and we are not concerned with it now. With respect to those judgment-debtors who represented the subsequent transferee, Gopal Rao, the Collector held that they were not members of an agricultural tribe within the meaning of the Act. It would seem, however, that a question was raised before the Collector as to whether the decree-holder would not accept a mortgage for a term of years from those judgment-debtors also, in lieu of enforcing his strict right to obtain a foreclosure decree, The Collector made a note of the terms on which the decree-holder was prepared to accept such a mortgage and gave these judgment-debtors one week’s, time within which to execute the same. They did not comply with this order, but appealed to the Commissioner against the decision of the Collector that they were not members of an agricultural tribe. The Commissioner apparently intended to hold that they were members of an agricultural tribe, but based his decision on the finding that, when the judgment-debtors appeared before him they professed themselves willing to execute a usufructuary mortgage as directed by the Collector. He returned the record to the Collector with directions to “allow a mortgage to be given for twenty years as originally directed.” The case having thus come back to the Collector’s court, the judgment-debtors in question did execute a mortgage; but the decree-holder took exception to the terms of that mortgage and refused to accept it. The Collector, thereupon, returned the record to the Civil Court without taking any further action which can in any way be regarded as falling under the provisions of Section 9 of the Bundelkhand Land Alienation Act. The question then arose in the Civil Court whether the decree-holder could or could not be given a decree absolute for foreclosure in respect of the share of these judgment-debtors in the property originally mortgaged. The court of first instance held that no such decree could be passed; but this finding has been reversed by the District Judge on appeal and a decree for foreclosure passed. The appeal before us is against the decree of the District Judge. We have been through the record and considered the arguments addressed to us. On behalf of the appellants we are asked to consider the question whether they should or should not be held to be members of an agricultural tribe under the Bundelkhand Land Alienation Act, and arguments are advanced, in favour of the contention that they are so. The real question, however, is as to the effect of the Collector’s order returning the record to the Civil Court. Rightly or wrongly the Collector has throughout adhered to the position that these particular judgment-debtors were not members of an agricultural tribe. He at no time put the decree-holder to the option provided by Clause (2) of Section 9 of the Act. Ho has in fact refused to allow these judgment-debtors the benefit of the Act. Under these circumstances the District Judge was right, in our opinion, in holding that the Civil Court had no option but to continue the proceedings before it independently of the provisions of the Bundelkhand Land Alienation Act. There was a conditional decree for foreclosure against these judgment-debtors, and the Collector, upon a reference duly made to him, has not passed any order which can be regarded as giving the judgment-debtors the benefit of the Bundelkhand Land Alienation Act. It follows that a decree absolute for foreclosure must inevitably be passed in respect of the share held by these judgment-debtors, We accordingly dismiss this appeal with Costs.
