Kumaraswami Sastri, J.:— The twelfth defendant is the appellant. Defendants Nos. 1 and 2 mortgaged certain items of property to one Naga Ayyar who filed Original Suit No. 61 of 1910 on the file of the Court of the Principal District Munsif of Mudura to recover the sum due on his mortgage. He impleaded the puisne mortgagees, one of whom was the present plaintiff Nidhi. A decree was passed in Form 7, Appendix D, of the Code of Civil Procedure. The amounts due to the plaintiff in the suit and the puisne mortgagee defendant were declared but the sale of the mortgaged properties was ordered only in case the defendant did not pay the amount found due to the plaintiff and the only right given to the puisne mortgagees was to share in the surplus if any arising out of the sale. One of the items of property was brought to sale in execution of the decree but the plaintiff-decree-holder was satisfied as the amount due was paid under Order XXI, rule 89, of the Code of Civil Procedure and the sale set aside. The property was sold by private sale to the appellant. As he did not pay the amount found in O.S No. 61 of 1910 to be due to the first respondent herein he sued for the recovery of the amount due to him as his mortgagor. Various defences were raised, the chief of which were (1) that the remedy of the plaintiff was by executing the decree in O.S No. 61 of 1910 and not by separate suit and (2) that the second suit was barred-, the matter being res judieata. The Subordinate Judge overruled the objections raised and passed a decree which was confirmed by the District Judge.
I am of opinion that the decision of the lower Courts is right. No doubt the present plaintiff Nidhi was a party to O.S No. 61 of 1910 as a puisne encumbrancer and the amount due to it was ascertained. The decree however did not direct redemption of the subsequent mortgagees and expressly authorized sale only in case the amount due to the first mortgagee was not paid within the time limited. The only right given to the puisne encumbrancers was the right to redeem the first mortgage and on sale to share in the surplus sale-proceeds in order of priority.
In Sarat Chandra Roy Chowdhry v. Nahapiet(1), the effect of a decree drawn up under Form 7, Appendix D, of the Code was considered and Pugh, J., was of opinion that there was no right conferred on the second mortgagee to get any relief at all if the mortgagor satisfied the first mortgagee's claim. He observed:
“In my view therefore under the Code the second mortgagee is there simply for the purpose as indicated by Brett and Mookekjee, JJ., in Mackintosh v. Watkins of receiving any surplus sale-proceeds or of redeeming and that he cannot take any independent action and treat the decree as in other respects in his favour.”
Referring to Kissory Mohun Roy v. Kally Churn Ghose(2) the learned Judge distinguished the case on the ground that it related to a decree passed as in the Original Side of the High Court and in Mackintosh v. Watkins Brett, J., took the view that the practice and procedure followed on the Original Side was not to govern decrees passed by Courts in the mufassal which were governed by the Civil Procedure Code and the Transfer of Property Act.
In Mackintosh v. Watkins it was held by Brett and Mookerjee, JJ., that in a suit by a first mortgagee impleading the mortgagor and the puisne mortgagees the mortgagor cannot be called upon to redeem the subsequent mortgagee defendants and that they are not entitled to have the property sold for non payment of the sums due to them. Brett, J., observed that
“the object of impleading the puisne mortgagee was to enable the properly to be sold free from his encumbrance, and not to enable him to practically obtain a decree against the principal defendant without bringing a suit properly framed for the purpose.”
The learned Judge was also of opinion that such a procedure would be opposed to the provisions of Chapter III of the Court Fees Act, Mookerjee, J., was of opinion that sections 86 to 89 of the Transfer of Property Act
“do not provide that the mortgagor may be called upon by the decree nisi to pay to a puisne encumbrancer who has been joined as a party-defendant what may be found due to him on his mortgage; the mortgagor therefore cannot incur the liability to have his property sold by reason of non-payment of the dues of the subsequent encumbrancers.”
He held that if the mortgagor-defendant pays to the plaintiff-mortgagee what may have been found due to him, the property was not liable to be sold under the decree in the suit at the instance of the second mortgagee. In Sururjiqur Begum v. Baredakant Mitter the same learned Judge was of opinion that if the amount due to the first mortgagee was paid there can be no sale, of the mortgaged properties and the puisne encumbrances would obtain no relief in the suit.
It is contended for the appellant that in a mortgage suit when puisne encumbrances are made parties defendants there 13 a decree in favour of each of the mortgagees which can be executed by him and reliance has been placed on Govinda Taragan v. Veeran and the unreported decision in Achutha Menon v. Subramania Patter(3). I do not think these decisions support the broad propositions contended for. The former case related to a suit for redemption of a mortgage and it was held that paragraph 2 of section 93 of the Transfer of Property Act did not take away the right from the plaintiff-mortgagor to apply for a sale. The learned Judges, after discussing the right of the mortgagor and mortgagee, observe that in some cases provisions for sale may be as much for the benefit of the mortgagor as for the benefit of the mortgagee and that
“where a decree is imperative there is no reason why the decree should not be regarded as passed or the benefit of all the parties to the suit.”
They thought there was no reason for holding that any of the parties to the suit who would be benefited by the sale cannot apply for the enforcement of the decree. It should be observed that the suit was between mortgagor and mortgagee and no question arose as to the rights of puisne encumbrancers. The decree was for redemption and the only question was whether it was open to the plaintiff in a redemption suit to apply for sale under sections 92 and 93 of the Transfer of Property Act. In the present case there is nothing in the decree directing the mortgagor to pay off the subsequent mortgagees. The decree no doubt declared the amount due to them but this was only with the view of enabling them to share in the surplus, should the property be sold owing to non-payment of the sum due to the plaintiff who was the first mortgagee. The right of the subsequent mortgagees under the decree drawn up according to Form 7, Appendix D of the Code of Civil Procedure is contingent on the property being brought to sale for non-payment of the sum found due to the plaintiff-??? and the decree cannot be read a decree directing the mortgagor to redeem such of the ??? encumbrances within the time limited for redeeming the first mortgagee and to entitle the puisne encumbrancer on default to bring the property to sale for non-payment not of the sum decreed due to the first mortgagee but to each of them. The ??? that can be said is that if the first mortgagee not some reason or other does not apply for sale in spits of the fact that be has not been paid, the other mortgagees can apply for sale in order to work out the rights to share in the surplus if any. The quite different from their applying to sell the property to discharge the amount declared due to each of then. If the mortgagor pays off the amount for which alone a sale in default of payment was, directed, it is default to see how under the express terms of the decree each puisne encumbrancer can come forward and ask for sale. No time is fixed in the decree for redeeming them. There is no direction in the decree directing the mortgagee to pay them any amount and the right to share which is dependent on there being a sale and a surplus after paying off the plaintiff-mortgagee cannot he enforced if for any reason the sale cannot take place at the instance of the plaintiff. Reference has been made to the English practice us set out in Platt v. Mendel and Daniel's Chancery Practice, but it is unnecessary to consider whether having regard to the provisions of the Transfer of Property Act Courts in India can pass a decree directing plaintiff to redeem each of the puisne mortgagees and direct a sale at the instance of each of them in case of his failure to do so. No such decree has been passed in the present case. In Aahutha Menon v. Subramania Patter the sub-mortgagee applied to enforce the decree in favour of his mortgagor who was the mortgagee from the owner of the property. All that was held was that he was entitled to apply for execution and to work out his rights by the sale of the property. The sale was to be for the amount directed in the decree to be paid by the original mortgagor to the mortgagee who in turn sub mortgaged the property to the defendant. There is nothing in the judgment which suggests that puisne mortgagees should be treated as decree holders entitled to bring property to sale in default of payment of that sura declared to be due to them, though the decree contains no direction that they should be redeemed or that property should be sold in default of payment of the sums declared to be due to the puisne mortgagees. The sub-mortgagee is an assignee of the original mortgagee and his being allowed to work oui his rights by doing what his mortgagor could have done would not confer similar rights on third parties claiming on their own right.
As the first respondent was not entitled to execute the decree in O.S No. 61 of 1910, section 47 of the Code of Civil Procedure has no application.
As regards the question of res judicata the present suit is beyond the pecuniary limit of the jurisdiction of the District Munsif. O.S No. 61 of 1910 which was on the file of the District Munsi's Court; cannot render the present suit res judicata. Moreover, as pointed out in Debendra Nath Sen v. Mirza Abdul Samed Seraji, a suit by a puisne mortgagee who is a party to a prior suit by another mortgage can only he barred if the puisne mortgagee is in a position to have his claim satisfied from the surplus sale-proceeds realized in execution of the decree on the prior suit.
The Second Appeal fails and is dismissed with costs.
Phillips, J.:— I agree.
N.R