Jwala Prasad, J.This appeal arises out of an execution proceeding. The decree-holder has obtained a mortgage decree with the direction to sell the mukarrari tight mortgaged to him. The judgment-debtor subsequent to the decree has acquired a higher right in the property known as the brahmottar right. The decree-holder seeks to sell this higher brahmottar right instead of the mukarrari which was mortgaged to him. The judgment-debtor objects to it, on the ground that the brahmottar was never mortgaged and could not be sold in execution of the decree. The Courts below have overruled the objection of the judgment-debtor, on the ground that the subsequent Requisition by the judgment-debtor of the brahmottar right was an aeration to the original mukarrari right and that such an accretion enures for the benefit of the mortgagee u/s 70 of the Transfer of Property Act, which rung as follows:

If after the date of a mortgage, any accession is made to the mortgaged property, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to such accession.

2. The meaning of the section has been explained by giving two illustrations to it. The one refers to an increase in the land originally mortgaged by means of alluvion. The other refers to a certain plot of building lard originally mortgaged on which was subsequently erected a house. In these illustrations there was undoubtedly an accretion to the mortgaged property. The Courts below have relied upon the case of Surja Narain Mandal v. Nanda Lal Sinha 33 C. 1212 in support of their view that the brahmottar right subsequently acquired by the judgment debtor was an accretion to his original mukarrari right in the property. In that case the mortgagors had a shikmi right in a taluk at the time when the deed of mortgage was executed. Subsequently they acquired a mukarrari interest therein and it was held that the latter right was an accretion to the original shikmi right aid that the mortgagee was entitled to treat the subsequent enlarged right as security. That case followed the Privy Council decision in the case of Raja Krishendutt Ram v. Raja Mumtaz Ali Khan 5 C. 198 : 5 C.L.R. 213 : 6 I.A. 145 : 4 Sar. P.C.J. 17 : 3 Suth. P.C.J. 637 : Rafique and Jacksons P.C. No. 58 8 Ind. Jur. 426 : 3 SL.R. 1 : 2 Ind. Dec. 737. "There an Oudh talukdar granted an usufructuary mortgage of a portion of his taluk, in respect of which there existed certain subordinate birt tenures. The mortgagee having subsequently acquired these birt tenures by purchase did not, as he might have done, keep them alive as distinct sub-tenures, but treated them as merged in the taluk. The mortgagor, many years after, brought a suit for redemption, when the question arose, whether upon re-paying the sum expended by the mortgagee in the purchase of the bitts, in addition to the amount due on the face of the mortgage-deed, the plaintiff was entitled to the possession of the estate as then enjoyed by the mortgagee; or whether the latter was entitled to retain the birt rights and interests purchased by him as an absolute under proprietary tenure in subordination to the talukdars rights, Held, that the plaintiff on re-payment of the original mortgage debt, and on reimbursing the defendant the sum expended in purchasing the birts, was entitled to re-enter on the estate with all the rights and privileges enjoyed by the latter." That was the converse of the proposition that an accession to the mortgaged property enures for the benefit of the mortgagee, for there the accession to the property during the possession of the mortgagee was held to be for the benefit of the mortgagor. At the same time a distinction appears to have been made between the subsequent accession having been kept separate or being merged into the original right. On the contrary in the case of Gangabai v. Baswant Ballappa 5 Ind. Cas. 866 : 34 B. 175 : 12 Bom. L.R. 143 it was held that the subsequent enlargement of the rights of the mortgagor in the property so as to make his right alienable in his lifetime, whereas he had originally only the deshgal vatan right consisting of an appurtenant of land to an hereditary office and inalienable beyond the lifetime of the incumbent, did not enure for the benefit of the mortgagee and that the latter was entitled only to sell the votan right which the mortgagee had originally mortgaged to him.

3. The learned Vakil on behalf of the appellant did not contest the principle that an accession subsequent to the mortgage of the rights of the mortgagor in the property does enure for the benefit of the mortgagee. He, however, disputed the application of this proposition when the mortgage is merged into the decree. He contends that the security which the mortgagee had under the conveyance, entered into between the parties and embodied in the deed, is extinguished and is merged into the decree which directs the sale of the mortgaged property and consequently the principle of Section 70 does not apply to an accession acquired subsequent to the decree. In support of the proposition that the mortgagees security as well as the mortgagors right to redeem are both extinguished after the mortgage decree is passed, reliance has been placed upon the case of Het Ram v. Shadi Ram 45 Ind. Cas. 798 : 28 C.L.J. 188 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.J. 92 : (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 40 A. 407 : 9 L.W. 550 : 12 Bur. L.T. 72 : 45 I.A. 130. This view appears to be irresistible also upon the principle that the Executing Court cannot go behind the decree and has to execute the decree as it is. In other words, the Executing Court has to sell the property specified in the decree to be sold for the satisfaction of the decree obtained by the mortgagee. The decree directed the sale of the mortgaged property, which at that time was admittedly the mukarrari right of the mortgagor. We, therefore, think that the contention of the judgment-debtor in the Courts below was right.

4. Differing from the view taken by the Courts below we decree the appeal and hold that the mortgagee-decree-holder is entitled only to sell the property as described in the mortgage-decree. As there is no appearance on behalf of the respondents, there will be no order as to costs,

Ross, J.

5. I agree,