Sankaran Nair, J.:— The plaintiff' brought this suit for the sale of the properties which were mortgaged to him under-two instruments, dated the 9th December 1894 and the 6th December 1901, respectively. In his plaint after praying for certain reliefs the plaintiff added that he would file a separate suit later on for the recovery of the debt due to him on the hypothecation bond for Rs. 2,000, executed in his favour on some of the properties specified in the plaint schedule and certain other properties. An objection was taken in the first Court the defendants (mortgagors) that a claim ??? this was not maintainable, that the plaintiff was bound to sue to recover the ??? due under all the mortgages and that he could not get a decree for the sale of certain properties subject to his claim on a mortgage. The claim which was reserved was on a prior mortgage. The District Munsif overruled the objection and passed a decree in the plaintiff's favour, directing the properties to be sold for the debt which was found due on the two mortgages sued on subject to the plaintiff's claim on the first mortgage.

2. On appeal the District Judge arrived at the conclusion that such a suit was not maintainable. He accordingly directed the plaintiff either to amend the plaint by also praying for the relief that he might be entitled to on the first mortgage or by abandoning his claim on that mortgage in respect of these items. The plaintiff abandoned his claim, but reserved his right to question the District Judge's order in appeal. The decree of the first Court was confirmed by him with certain modifications as to the debt due. In second appeal, a preliminary objection is taken by the respondents' Pleader that no appeal lay against the decree of the District Judge, since there was nothing in the decree against which the plaintiff is entitled to take an objection; bub the Judge holds in his judgment that the plaintiff is not entitled to reserve his claim and it is, therefore, impossible to say that the plaintiff has no right to appeal. Overruling this objection the question that remains for consideration is whether such a suit is maintainable. It was held by this Court in Dorasami v. Venkataseshayyar(1) and Nattu Krishnama Chariar v. Annangara Chariar(2) that it was not open to a mortgagee to bring a suit to recover the debt due under only one of the mortgages and to sell the property under the decree subject to his claim under a prior mortgage. Those decisions were based upon two grounds: first, upon Section 85 of the Transfer of Property Act which requires all persons interested in the mortgaged property to be made parties to the suit; and, secondly upon the words of Section 61 of the Transfer of Property Act and upon the form of decree for sale, No. 128 of Schedule IV of the Code of Civil Procedure (Act XIV of 1882). In a later case, Radhakrishna Iyer v. Muthuswamy Sholagan(3), it has, however, been held that there is nothing to prevent a decree being passed to enforce a mortgage subject to a prior mortgage. The prior decisions in Dorasami v. Venkataseshayyar and Nattu Krishnama Chariar v. Annangara Chariar were not referred to and the reasons given in those judgments have not been considered. In so far as those judgments were based upon Section 85 of the Transfer of Property Act, those judgments may now be disregarded, as that section has been repealed and O. 34, R. 1, of Act V of 1908 now enacts that “a puisne mortgagee may sue for foreclosure or for sale without making the prior mortgagee a party to the suit”; and the rule itself says that it is only those persons having an interest either in the mortgage security or in the right of redemption that need be made parties to the suit. In so far as those judgments are based upon Section 61 of the Transfer of Property Act and the form of decree for sale given in the Code of Civil Procedure, the reasoning still holds good. The learned Judges in Dorasami v. Venkataseshayyar say that according to that form and according to that section a mortgagee cannot seek to obtain an order for sale on one of the mortgages only. Those provisions of law are practically reproduced now in the Code of Civil Procedure, O. 34, Rr. 2 and 4. There is no difference in this respect. We are unable to hold, therefore, that the decisions in Dorasami v. Venkataseshayyar and Nattu Krishnama Chariar v. Annangara Chariar have ceased to be in force on account of the repeal of the provisions of law then in force. These decisions, however, seem to be in direct conflict with the decision of Radhakrishna Iyer v. Muthuswami Sholagan. The question is an important one which very frequently arises, and it is, therefore, desirable that it should be set at rest by an authoritative ruling. We would, therefore, refer to the Full Bench for decision the question, whether it is open to a mortgagee to bring a suit for the recovery of his debt by sale of the properties mortgaged to him subject to his interest in a prior mortgage.

Tyabji, J.:— I agree. I only wish to add that the following points seem to me to be involved in the question which we refer to the Full Bench: first, whether the suit is defective by reason of a prior mortgage not being sued upon in the proceedings before the Court, in other wards, whether the reservation purported to be made by the mortgagee of his right to sue upon the prior mortgage affects the maintainability of the suit on the later mortgage; and secondly, if a suit is so brought with such a reservation and a decree is purported to be passed with such reservation, whether the reservation can have any effect or whether a subsequent suit on the prior mortgage must be unaffected by the fact of any such reservation being made or omitted to be made. I do not wish to express any opinion on this point, but I should like it to be considered whether the decisions in Watson & Co. v. Collector of Rajshahye(4), Mohan Lal v. Ram Dial(5) and Sukh Lal v. Bhikhi(6) have any, and if so, what bearing on this point. These decisions were not cited to us and have not been considered by me with reference to this case. The second point will also involve the consideration of the question whether, if the prior mortgage comes to the cognisance of the Court, the mortgagee (even though he should purport to reserve his rights under the prior mortgage) must of necessity be put to the alternative either of amending the plaint by suing upon both mortgages or of abandoning his rights under the prior mortgage.

Opinion of the Full Bench.

Wallis, C.J:— In support of the view taken in Dorasami v. Venkatasehayyar reliance was placed on the provisions of Sections 61, 85 and 99 of the Transfer of Property Act, as well as on the form of decree No. 128 of Schedule IV of the Code of Civil Procedure. The modification introduced into Ss. 85 and 99, when re-enacted as O. 34, Rr. 1 and 14 in the Code of 1908, affect all these grounds except the first Under O. 34 R. 1, which is in accordance with the decision of the Full Bench of the Allahabad High Court in Ram Sankar Lal v. Ganesh Prasad(7), only parties interested in the mortgage security or the right of redemption need be joined in a suit relating to the mortgage, and the explanation makes it clear that a prior mortgagee is not to be regarded as interested in a suit brought by a puisne mortgagee for sale or foreclosure, or in a suit brought by the mortgagor to redeem a puisne mortgage Consequently, he need not be made a ??? to such suits, and it follows that, if such suit results in a decree for sale, the ??? must be subject to his rights. It cannot therefore, now be said that O. 34, R. 1 requires a prior mortgagee to be joined and the property to be sold free of his mortgage whether or not the prior mortgagee be the same person as the puisne mortgage. Secondly, the language of R. 1 shows that in the case of a puisne mortgage what is mortgaged and has to be redeemed, that is to say, the mortgaged property, consists only of the equity of redemption under the prior mortgage, and that, therefore, the form of decree in the Code of Civil Procedure does not require that on redemption of the puisne mortgage, the land itself should be re-conveyed free of the prior mortgage as well. This ground then can no longer be relied on. The argument based on S. 99 also goes, as the re-enacted O. 34, R. 14, only debars the mortgagee from bringing the mortgaged property to sale otherwise than by a suit in enforcement of the mortgage, when such sale is in satisfaction of the mortgage-debt itself, and not, as under Section 99 of the Transfer of Property Act, whatever the nature of the claim. This shows that the Legislature does not consider it desirable except in the case specified, to prevent the mortgagee from acquiring the equity of redemption otherwise than by suit upon the mortgage itself, and affords a strong argument against the imposition of such a restriction by the Court.

3. Coming now to Section 61 of the Transfer of Property Act the provisions of that section, which is modelled on Section 17 of the Conveyancing Act of 1881, are a restriction of the equitable rule regarding the consolidation of mortgages, viz., that a mortgagor seeking to redeem a particular mortgage should be required at the same time to redeem all the other mortgages created, by him in favour of the same mortgagee. I am unable to say that the provisions of this section afford sufficient reason for refusing to allow a mortgagee suing on a puisne mortgage to sell subject to a prior mortgage in his favour. It is, no doubt, laid down in Vadju v. Vadju(8) citing Brown v. Cole(9) that, in the absence of any stipulation, express or implied, to the contrary, the right to redeem and the right to for ??? must be regarded as co-extensive; ??? those observations were made with ??? to the time for bringing such its and not to their other incidents. On ??? other hand it was laid down generally a Wickenden v. Rayson(10), that a sale cannot be directed against a mortgagee that is to say, free of his mortgage, without his consent whether he be a party to the suit or not; see also Section 96 of the Transfer of Property Act Lastly, with reference to the query of their Lordships in Sri Gopal v. Pirthi Singh(11), as to whether in view of the provisions of Section 43 of the CPC, now O. 2, R. 2, a mortgagee having several mortgages on the same property is entitled to treat them as separate causes of action or must bring one suit on all his mortgages, I think we are bound by the decisions of this Court to say that he is entitled to treat them as separate causes of action.

4. In the result, therefore, I would answer the question referred to us in the affirmative.

Ayling, J.:— I agree.

Sadasiva Aiyar, J.:— I entirely concur with the judgment of my Lord, Chief Justice. The question referred to the Full Bench is “whether it is open to a mortgagee to bring a suit for the recovery of his debt by Sale of the properties mortgaged to him subject to his interest in a prior mortgage.” I agree with the decisions in the two cases decided by this Court in Abdul Rakmian v. Mahomed(12) (Muthuswami Aiyar and Best, JJ.) and Radhakrishna Iyer v. Muthuswamy Sholagan (Munro and Abdur Bahim, JJ.) which answered this question affirmatively.

5. As regards the obiter dicta in Dorasami v. Venkataseshayyar and Balasubramania Nadar v. Sivaguru Asari(13), I agree generally with the acute criticisms found in the article beginning at page 168 of 20 M.L.J, though I differ from the learned critic in respect of his remark (at page 170) that “it does not seem legitimate to infer” from Section 61 of the Transfer of Property Act that a mortgagor cannot redeem one of two mortgages made of the same property to the same person. I also agree with the judgment of Beaman, J. in the case of Dhondo Ramachandra Kulkarni v. Bhikaji Gopal(14). I might be permitted to suggest to the Legislature that S. 61 of Act IV of 1882 might be replaced by a section enacting that all consolidation, even in the case where the mortgagee and mortgagor are the same persons and the property is the same, is abolished.

S.N/R.K

6. Reference answered.