JUDGMENT Henry Richards, Kt. C.J. and Pramada Charan Banerji, J.
1. The decision of the court below in this case cannot be supported. Ismail Khan and Zarina Khatun were admittedly in possession of the property leaded to them by the plaintiffs. To secure the rent which they agreed to pay for such use and occupation, they hypothecated their property. The present suit was one to enforce the hypothecation. The suit was clearly maintainable, and the court below was wrong in holding that because no patta was granted to the executants of the kabuliat, the rent agreed to be paid was not payable and the security for its payment could not be enforced. This case is similar in some respects to that of Sheo Karan Singh v. Maharaja Prabhu Narain Singh (1909) I.L.R., 31 All., 276. We allow the appeal, set aside the decree of the court below and remand the case to that court under Order XLI, Rule 23, of the Code of Civil Procedure with directions to re-admit it under its original number in the register and to dispose of the other questions which arise in the case. The appellant must have the costs of this appeal. Other costs will follow the event.