Das, J.:— The only question raised in this appeal is whether the defendants 3 and 4, who are the appellants before us, are not entitled to priority in respect of 4-annas share in a property bearing Touzi No. 126. The material facts are as follows:—
On the 22nd December, 1905, one Bisheshwar, the father of defendants 1 and 2, borrowed a sum of money from one Ramlagan and executed a mortgage in his favour in respect of a 4-annas share in a property known as Mauza Parmanandpur, bearing Touzi No. 126. Bisheshwar executed two further mortgages, one dated the 19th June, 1911, and the other dated the 27th April, 1913, in favour of the plaintiffs. In 1912, Ram Lagan brought a suit to enforce his mortgage, and on the 24th September, 1912, he recovered a decree as against Bisheshwar. Thereafter the mortgaged properties were put up for sale and were in fact purchased by Ram Lagan. On the 14th December, 1914, Bisheshwar, along with two other persons, borrowed a sum of Rs. 4,935 from the appellants and executed a mortgage in favour of the appellants in respect of certain properties including the 4-annas shares in Mauza Paramanandpur, bearing Touzi No. 126. The mortgage in favour of the appellants recited that Ram Lagan had recovered a decree as against them and that it was absolutely necessary for them to deposit the decretal money in Court in order to have the sale in favour of Ram Lagan set aside. On the 15th December 1914, Rs. 4,192-11-9 was actually deposited by Bisheshwar in Court and a receipt was granted to the appellants by Bisheshwar in respect of the money which, was advanced by the appellants to Bisheshwar, in which it was distinctly stated by Bisheshwar that out of the money which was advanced by the appellants to Bisheshwar he had deposited the decretal money due to Ram Lagan Singh, decree-holder. There cannot be the slightest doubt that the money actually advanced by the appellants went to satisfy the mortgage bond of Ram Lagan. The question, therefore, arises, was the charge in favour of Ram Lagan extinguished, or was it kept alive by the transaction which took place between the appellants and Bisheshwar? In my opinion there cannot be the slightest doubt that the charge was kept alive. It was manifestly to the interest of the appellants that the charge should be kept, alive and there is no reason at all to hold that they did not intend that which was manifestly to their advantage and for their benefit.
The learned Subordinate Judge has taken the vie that the allegation that Ram Lagan's debt was satisfied out of the consideration money of the appellants' bond is not supported by any reliable evidence. In my opinion it is supported by the recitals of the bond and also by the receipt Exhibit A to which I have already referred. Then the learned Subordinate Judge says that there is no argument in the appellant's bond that the debt of the appellants will have priority over the plaintiffs' mortgage. Of course there is no such agreement nor could there be any such agreement. The question that the learned Subordinate Judge should have considered was this: was the mortgage bond of Ram Lagan extinguished or kept alive? and had the learned Subordinate Judge referred to the numerous authorities on the point, he would have had no sort of difficulty in coming to a proper conclusion on this point.
It was lastly argued by the learned Vakil for the respondents that the Judicial Committee, in the case of Het Ram v. Sadi Ram, has taken the view that upon an order absolute for sale being passed under section 89 of the Transfer of Property Act, the security is entirely extinguished and cannot be kept alive for any one's advantage. It is of course conceded in this case that an order absolute for sale was passed in Ram Lagan's suit and that thereafter a sale of the property actually took place. If the decision of the. Judicial Committee in Het Ram v. Shadi Ram be the last word on the subject, then there can be very little doubt that the respondents will be entitled to succeed. But this case was considered by the Judicial Committee in the case of Sukhi v. Ghularn Safdar Khan. It was pointed out that various cases which have taken the opposite view were not brought to the notice of the Board in Het Rom's case and that whatever the difficulty might have been under the Transfer of Property Act, the position is entirely different now that we are governed by the Civil Procedure Code and not by the Transfer of Property Act. Their Lordships in the course of their judgment said as follows:—
“Now the words being gone”, namely, the Concluding words in section 89 of the Transfer of Property Act which gave rise to a conflict of authorities on the subject, “their Lordships feel no difficulty in holding that the law remains as it certainly was before the Transfer of Property Act, 1882, namely, that an owner of a property who is in the rights of a first mortgagee and of the original mortgagor as acquired at a sale under the first mortgage is entitled at the suit of a subsequent mortgagee who is not bound by the sale or the decree on which it proceeded, to set up the first mortgage as a shield”. In my opinion this decision is conclusive on the point.
I hold that the decision of the learned Subordinate Judge on the question that has been argued before us cannot be supported. I must accordingly modify the decree which has been passed by the learned Subordinate Judge and direct that the sale of the 4-annas share in Mauza Parmanandpur, bearing Tonzi No. 126, must be subject to the prior mortgage lien of the appellants to the extent of Rs. 4,192-11-9.
The appellants will be entitled to their costs both in this Court and in the Court below from the plaintiffs.
Adami, J.:— I agree.
Decree modified.