Stanley, C.J and Banerji, J.:— This appeal arises out of a suit for sale upon two mortgages made respectively on the 11th of July, 1897, and the 4th of August, 1898, by one Dariao Singh in favour of the plaintiff, Banwari Lal. Dariao owned a biswa share in the village Serai Khas. On the 18th of August, 1894, he mortgaged a 4 biswa share to one Bhola Nath. On the 11th of December, 1894, he mortgaged 5 biswas to Bhola Nath, and on the 14th September, 1895, he mortgaged 1 biswa more to the same mortgagee. After these mortgages he made the two mortgages in favour of Banwari Lal to which we have referred above. On the 23rd of April 1900, Dariao sold to Prag Narain his interest in the mortgaged property, and he left Rs. 2,600 with the purchaser for discharge of the mortgages held by Bhola Nath. Prag Narain did not pay off those mortgages, but on the 16th of September, 1901, he made a mortgage of the property to one Hardwari Lal for Rs. 3,300, and out of this sum Hardwari Lal withheld Rs. 2,200 for payment to Bhola Nath. With this money he discharged the mortgages held by Bhola Nath. Hardwari Lal brought a suit for sale upon his mortgage and obtained a decree against Prag Narain. In execution of that decree the mortgaged property was sold by auction and the appellant Mati-ullah Khan became the purchaser. In the suit out of which this appeal arises Banwari Lal prayed for the sale of the property purchased by Mati-ullah Khan. Mati-ullah's defence was that he was entitled to hold up the mortgages of Bhola Nath as a shield against the claim of Banwari Lal. The court below, relying upon the ruling of this Court in Baij Nath v. Murii Dhar , has held that Mati-ullah Khan has no right by virtue of his purchase to claim priority over the plaintiff.
The correctness of this decision is impugned in this appeal, and it is urged that Mati-ullah as standing in the shoes of Hardwari Lal is entitled to claim the benefit of the prior mortgages held by Bhola Nath which were discharged by Hardwari Lal. This contention is in our judgment well founded. After the sale to Prag Narain the mortgagor ceased to have any interest in the mortgaged property and those interests vested in Prag Narain under his purchase. Hardwari Lal, as mortgagee from Prag Narain, was thus, a subsequent mortgagee of the property. As such subsequent mortgagee he redeemed the prior mortgages held by Bhola Nath, and therefore under the provisions of section 74 of the Transfer of Property Act, he was entitled to take the benefit of the securities held by Bhola Nath. Further, as upon his discharge of the prior mortgages held by Bhola Nath the mortgage deeds were handed over to him, this is evidence of his intention to keep the mortgages alive. He was therefore entitled to hold them up as a shield against the claim of the subsequent mortgagee. This was so held in Kallu v. Sant Lal , and is in agreement with the unreported decision in Baldeo Prasad v. Uman Shankar , Second Appeal No. 1069 of 1905, decided on the 6th April, 1907, and also with the decision in Mamraj v. Ramji Lal , Second Appeal No. 757 of 1908, decided on the 25th of May, 1909, which has not yet been reported. The case on which the court below has relied is distinguishable from this case. The circumstances of that case were peculiar, and having regard to those circumstances the puisne mortgagee was held to be entitled to enforce his mortgage against the subsequent purchaser, who had discharged prior incumbrances.
For the above reasons we are of opinion that the plaintiff Banwari Lal is not entitled to bring the mortgaged property to sale without discharging the prior mortgages which have been paid of by Hardwari Lal. The court below has not determined what amount, if any, is due on those prior mortgages. We cannot therefore decide this appeal without obtaining findings on the following issues, which we refer to the court below under the provisions of order 41, rule 25, of the Code of Civil Procedure:—
(1) What amount, if any, is due on each of the mortgages held by Bhola Nath, dated respectively the 18th of August, 1894; the 11th of December, 1894, and the 14th of September, 1895?
(2) Is the claim under any and which of these mortgages barred by limitation?
The Court will take such additional evidence as may be necessary. On receipt of its findings ten days will be allowed for filing objections.
Issues remitted.