1. The facts which are relevant for the purposes of the present appeal and which are in dispute now are as follows: One Dasarath De, who is defendant 6 in the present suit, mortgaged the disputed land to the father of the plaintiff and the proforma defendants 7 and 8 and the husband of pro forma defendant 9 on 20th Sraban 1274 M.E corresponding to 4th August 1912. The plaintiff and the pro forma defendants brought a suit on their mortgage on 9th July 1920. Usual mortgage decree for sale was passed on 8th September 1923 and the property was purchased by the plaintiff on 8th May 1924. The same mortgagor, that is defendant 6, mortgaged these very lands to one Lakshi Charan Saha on 21st Chaitra 1274 corresponding to 5th April 1913. Lakshi Charan Saha's son Prasanna Kumar Saha sued on his father's mortgage on 2nd June 1919 and obtained a decree on 11th September 1919 in execution of this mortgage decree. Defendant 2 purchased the property in execution of the mortgage decree on 2nd February 1922, and obtained possession of the lands through Court. The plaintiff after his purchase on 8th May 1924 could not get actual possession. On 13th December 1927 he raised the present suit for recovery of khas possession of the lands which he purchased on declaration of his auction-purchased right in the lands. The defence of defendant 2 was that the plaintiff was not entitled to any relief in the suit, in view of the fact that neither he nor the second mortgagee was impleaded as parties in the mortgage suit instituted by the plaintiff in the year 1920. The trial Court accepted the defence of defendant 2 and dismissed the suit. On appeal the learned Judge has reversed the decision of the trial Court and has, passed the following order
“The case is remanded to the Court below for enabling defendant 2 to redeem the prior mortgage of the plaintiff's father in accordance with the observations as above made. If defendant 2 exercise his right of redemption in pursuance of the Court's order the suit will fail, but if he does not do so, the suit will succeed and the plaintiff will be given possession of the suit lands by ousting him (defendant 2) and the other defendants if in possession”.
2. Hence the present appeal by defendant 2. The points for determination in this appeal therefore are (1) whether the plaintiff can claim possession of the property as against defendant 2, and (2) whether defendant 2 is bound to redeem the plaintiff in view of the events that have happened in this case. The principle is now well established that
“persons who have taken transfers of property subject to a mortgage cannot be bound by proceedings in a subsequent suit between the prior mortgagee and the mortgagor to which they were never made parties: See 18 Cal 1641”.
3. Defendant 2 is therefore not bound by the proceedings in the suit instituted by the plaintiff and his right cannot in any way be affected by the sale which was held in execution of the decree passed in that suit. Now what are the rights of defendant 2 on the basis of his purchase at the auction-sale held before the plaintiff purchased this property. It cannot be disputed now that a purchaser at a sale in execution of a mortgage decree gets the mortgagee's rights as well as the rights of the mortgagor and after the mortgagor's interest has once passed away to a purchaser, that interest cannot again be sold effectively: See 25 Cal 1792.
4. The rights of the mortgagor vested in defendant 2 before the plaintiff's purchase and consequently he became entitled to possession before the plaintiff purchased at the auction-sale in execution of the decree obtained by him on the basis of his first mortgage. Consequently, the plaintiff cannot claim the mortgagor's right on the basis of his purchase. Again the purchase by the plaintiff cannot affect defendant 2's purchase of the mortgagor's right, that is, the equity of redemption, inasmuch as the suit by the first mortgagee was started after the second mortgagee had obtained his decree. In other words the plaintiff is bound by the doctrine of lis pendens and cannot claim the mortgagor's rights.
5. The position therefore is that the plaintiff on the basis of his purchase cannot claim the equity of redemption as against defendant 2 in whom the rights of the second mortgagee as well as the rights of the mortgagor are now vested. He can no doubt fall back upon the first mortgage but he cannot recover possession on the strength of that mortgage, as that mortgage being a simple mortgage does not give him any right to possession. Whatever right the plaintiff may have under the first mortgage can no doubt be enforced by him by a proper proceeding taken for the purpose. This view appears to us to be supported by the principle underlying the decision of the Judicial Committee in the case of 1929 PC 2883. The plaintiff's claim for khas possession therefore must be dismissed. As this is the only prayer in the plaint, the plaintiff's case is liable to be dismissed on this finding alone.
6. It is however contended by the learned advocate for the respondents that as the plaintiff had no notice of the second mortgage at the time when he brought the mortgage suit, the equities between the parties ought to be adjusted in the present litigation. It is argued that as under the law defendant 2 is bound to redeem the plaintiff's mortgage, the plaintiff's right to recover possession may be declared subject to defendant 2's right to redeem. In other words the contention of the learned advocate is that defendant 2 must be compelled in this suit to redeem. Redemption however is a legal right which a person entitled to redeem may seek to enforce. It is not a liability which he may be compelled to discharge, see 9 IC 5134. Again on the question whether the plaintiff had notice of the second mortgage at the date of his suit, the Courts below have differed. In view of the decision in 1918 PC 345, it is very difficult to hold that the first Court was wrong in holding that the plaintiff had notice. The case of 1921 PC 1126, on which the learned Judge has relied does not lay down that the decision in 1918 PC 34 is wrong. It may be noticed here that the proviso about notice contained in Section 85 of the Transfer of Property Act, has been omitted from R. 1, O. 34 of the Cr PC, which has repealed the said section.
7. It was nest contended on behalf of the plaintiff that each party ought to be placed as nearly as possible in the position which he would have occupied if all the parties interested in the mortgage security had been brought before the Court in the plaintiff's suit on mortgage. The real import of this contention is that this suit should be treated as a suit to enforce the first mortgage on which the plaintiff in any view of the case is entitled to fall back. It cannot be disputed now in view of the provisions contained in O. 34, R. 5 which has replaced Section 85 of the Transfer of Property Act, that the plaintiff's mortgage has not been, extinguished by the sale. Consequently the plaintiff is entitled to claim the rights of the first mortgagee. But the real difficulty in the way of the plaintiff in this connexion is that 12 years from the date when the mortgage money payable on the first mortgage became due, had elapsed before the institution of the present suit, and consequently the plaintiff's right to enforce the mortgage lien had become barred by limitation before the institution of this suit. See 11 CWN 4037. There is no provision in the Limitation Act under which the plaintiff in view of the facts of the present case can claim exemption from the bar of limitation. In 35 All 2278, the right of a mortgagor to redeem became inoperative for a time owing to the fusion of the rights of the mortgagor and purchaser. After the dissolution of the dual capacity he applied to redeem the property and claimed to deduct the time during which the fusion subsisted. Sir John Edge in delivering the judgment stated that there is nothing in Act 15 of 1877 which would justify the Board in holding that, once that period of limitation had begun to run in this case, it could be suspended.
8. Their Lordships consider that if they were to hold that by reason of the fusion of interest between 1883 and 1898, the period of limitation was suspended, they would be deciding contrary to the express enactment of that section that “when once time has begun to run, no subsequent disability or inability to sue stops it.” The principle laid down in that case is equally applicable to the facts of this case. The plaintiff cannot claim any deduction of time during which the alleged fusion of his rights as mortgagee and purchaser of the mortgagor's rights by virtue of his auction-purchase at the mortgage sale subsisted. Much reliance was however placed by the learned advocate for the respondents on two decisions of this Court namely, 32 Cal 8919, and 11 CWN 403. The first case however is not of much assistance to us in this matter as the judgment of Brett, J., realty proceeded on the footing that in view of the provisions of Section 82 of the Transfer of Property Act, which governed that case, the purchaser could not fall back on his mortgage, as under Section 89 of the Transfer of Property Act, after the sale, the mortgage security became extinguished. This section however has now been repealed and the sale at which the plaintiff purchased was held under the provisions of O. 34 of the CPC. Consequently though the plaintiff could not acquire any title to the mortgagor's right, his mortgage security cannot now be considered as having been extinguished by the sale. The second case, i.e, the case in 11 CWN 403, simply follows the first case.
9. It is true that when defendant 2 purchased the property, he purchased it subject to the first mortgage, but at the time when the present suit was brought, the claim on the first mortgage had already become barred as against defendant 2. The plaintiff is therefore not entitled to get any relief in this suit. The view which we have taken in this case is supported by the decision of the Full Bench of the Allahabad High Court in 1931 All 46610. The appeal is accordingly allowed and the plaintiff's suit is dismissed, but in view of the circumstances of this case we direct that the parties do bear their own costs throughout.
K.S
10. Appeal allowed.