Adami, J.:— This appeal arises out of a suit in which the plaintiffs sought to redeem a mortgage. In 1913 three brothers, Sarat Chandra Chatterji, Hem Chandra Chatterji and Gauri Prasad Chatterji mortgaged a 3 annas 2 pies 8 karant share in Mahal Chanda Khudawan to Defendant No. 1. In 1915, Surat Chandra and Hem Chandra Chatterji sold 2 annas out of their 2 annas 1 pie 12 karant share to Plaintiff No. 1, to the other plaintiffs and to the pro forma defendants. The plaintiffs' share in the purchase was a 5 pies share. In 1919 Defendant No. 1 brought a suit on her mortgage joining all the three brothers, but she did not implead the plaintiffs. She obtained an ex-parte decree on the 24th March 1920, and a final decree for the sale of the property on the 17th July 1920. In 1921 the entire share was sold to Defendant No. 2, Defendant No. 3 being interested. In March 1921, possession was delivered and on the 2nd July 1921, the Defendants 2 and 3 sold the entire share to Defendants 4 and 5.

2. The suit out of which this second appeal arises is a suit for redemption of the whole mortgage. The only point which arose in the suit was whether the plaintiffs have the right to redeem the entire mortgage or only the right to redeem to the extent of their 5 pies share. Defendants 4 and 5 contested the suit on the ground that plaintiffs could not redeem more than the share purchased by them that is to say the 5 pies share.

3. The learned Subordinate Judge held that the plaintiffs had the right to redeem the entire mortgage subject to the safeguarding of the right to redeem which other owners of the equity of redemption still had. He relied on the case of Yadalli Beg v. Tukaram(1).

4. On appeal the learned District Judge upheld the finding of the Subordinate Judge and dismissed the appeal. He held that a direction added by the Subordinate Judge to his judgment after he had signed it to the effect that, after delivery of possession the usufruct enjoined by the defendants would be calculated and set off towards the dues of debts from the plaintiffs, must be deleted since the Subordinate Judge had no power to add such a direction after he had signed the judgment.

5. It was strenuously urged before this Court that the lower Courts were wrong in allowing the plaintiffs to redeem the entire mortgage. Mr. Sushil Madhab Mullick relied on the case of Azimut Ali Khan v. Jowahir Singh(2) and on a judgment of Mr. Justice Das in Sheonarain Sahu v. Ram Nirekhan Ojha(3). He argued that the latter case should guide this Court and that the plaintiffs should not he allowed to redeem more than their share. His argument is that by the sale in execution of the mortgage decree the vendors of Defendants 4 and 5 obtained both the rights of the mortgagor and the mortgagee, and by their purchase the mortgage was split up, and having been split up, a mortgagor owning a part of the equity of redemption could only redeem such part as he owned.

6. Now the case of Azimut Ali Khan v. Jowahir Singh shows that the mortgagee has a right to insist that his security so long as it is entire, shall not be split up, and that he should be redeemed in tpto, except when the mortgagee has himself split up his security by acquiring a portion of the mortgaged estate. That case does not lay down that, where a mortgage has been split up, a mortgagor cannot redeem more than his share in the equity of redemption. What it does lay down is that the mortgagee in such case cannot prevent a mortgagor from redeeming his share only instead of the entire mortgage. Many cases have been cited before us in support of the proposition put forward by the appellants. It is urged that by the auction sale the auction-purchaser stepped into the shoes of the mortgagees and acquired both the right of the mortgagee and the equity of redemption. I am not inclined to uphold the contention in a case like the present one. By the auction purchase the rights of the mortgagee were assigned to the auction-purchaser; he did not purchase the whole of the equity of redemption because the plaintiffs had not been impleaded in the suit on the mortgage. If the plaintiffs had been impleaded in that suit though they had only a 5 pies share, they would have been entitled to redeem the entire mortgage by paying the entire mortgage debt. To agree with the learned advocate for the appellants would be equivalent to stating that though by law the mortgagee is bound to join every mortgagor as a party defendant to his mortgage suit, he can, by refraining from so joining any of the several mortgagors, put that mortgagor who is omitted from the list of defendants in a worse position than he would have been had he been impleaded.

7. I have no doubt in my mind that the lower Courts were perfectly right in finding that they were bound by the decision in Yadalli Beg v. Tukaram. In that case the owner of 16 fields in Berar mortgaged them to the applicant in 1896. The mortgagor conveyed one of the fields to the respondents in 1899 but the mortgagee brought a suit to enforce the mortgage against the mortgagor alone without making the respondents parties, and obtained a decree by consent. The respondents thereafter brought a suit for redemption, and the question arose whether they were entitled to redeem the whole of the mortgaged property or only the field conveyed to them subject to the mortgage over the whole. It was held by their Lordships of the Privy Council that, subject to the safeguarding of the equal title to redeem of any other person who had a right of redemption, the respondents were entitled to redeem the entire mortgage, unless something had happened to extinguish the mortgage in whole or in part, or unless the conduct of the respondents had estopped them from asserting what would normally have been their rights. Their Lordships observed that it was not the law in India, any more than in England, that one of several mortgagors cannot redeem more than his own share unless the owners of the other shares accept or make no objection, subject to the safeguarding of the rights which those owners might possess. That decision of the Privy Council is binding, and the decision in this suit must follow it.

8. It is contended that to allow the plaintiffs to redeem the whole of the mortgage will be harsh on the Defendants 4 and 5, since, at their subsequent sale, they paid considerably more for the property than the mortgage debt amounted to. I do not think that the fact that, in the case I have cited above, the suit was a suit for fore closure, whereas in the present case the suit was for sale, makes any difference in the case. I must hold that the lower Courts were quite right in the decision to which they came and that the plaintiffs have a right to redeem the whole of the entire mortgage subject of course to the right of any others, who have an equity of redemption to exercise that right.

9. In my opinion the appeal should be dismissed with costs; and, in order to safeguard the interests of all the co-owners of the right of redemption, the case should be sent through the lower appellate Court to the trial Court in order that the amount due upon the mortgage with interest may be ascertained, and an order may be passed directing the plaintiff to deposit that amount in Court within three months of its ascertainment. If the plaintiffs fail to deposit the amount their suit will have to be dismissed. On such deposit being made a final decree for redemption will be passed, but possession will not be delivered to the plaintiffs until after the expiry of one week from the date of such decree. If Defendants 4 and 5 consent within that week that their proportion of the total mortgage money due in respect of their 1 anna 2 pies and odd share be repaid, and also pay up the costs of the suit and appeals decreed against them and their proportion of any other costs which would be a charge under. S. 95, or consent that the same be paid to plaintiffs out of the total mortgage money, possession of the share of those defendants will not be delivered to plaintiffs.

10. If at any time within that week or afterwards the owners of the two annas share, other than the plaintiffs, pay to the plaintiffs their respective portion of the total mortgage money, and of the charge under S. 95 (other than the amount recovered as cost from Defendants 4 and 5), their respective shares shall be delivered to them, and the plaintiffs shall either not come into possession of them or shall forthwith make over possession of them, as the case may be.

11. After delivery of judgment and its signature by the learned Subordinate Judge, the following words were added by the Subordinate Judge:

After the delivery of possession the usufruct enjoyed by the defendants would be calculated and set off towards the dues of debts from plaintiffs.

12. The learned District Judge held that, the alteration being material and no petition for review having been filed, the Subordinate Judge had no power to after or amend his judgment in this way, and he therefore directed the cancellation of the amendment. There is a cross-objection by the respondents against this order of the District Judge and I think this cross-objection must succeed. The omission by the Subordinate Judge was an accidental one; for such direction was clearly necessary and Section 152 of the CPC could be invoked. It will be open to the trial Court to give appropriate directions for accounts of the nature referred to above, and also in other respects as may be necessitated by the directions above given and by the action in respect of them of the various co-owners. I note that, though the mortgage decretal debt was Rs. 4,179, the sum realized at the sale was Rs. 5,101 and the decree-holder received a payment order for the entire sum of Rs. 5,101. It is not clear why the surplus proceeds were paid to him. The learned Subordinate Judge will doubtless consider this. The cross-objection is allowed with costs.

Macpherson, J.:— I agree.

13. Appeal dismissed.