This is an appeal on behalf of the Plaintiffs in an action for declaration of title and recovery of possession on the basis of purchase at a sale in execution of a decree on a mortgage. It is admitted that Defendants Nos. 8 to 11 were the original owners of the thirteen parcels of land to which reference is made in the plaint and the series of transactions by which the contesting claimants acquired title to them, are not disputed before this Court. On the 12th March 1890, the owners executed a mortgage of all these properties in favour of one Gopal Chunder Misser, and undertook to repay the loan on the 14th December 1890. They defaulted in making payment and the mortgagee transferred his rights to the present Plaintiffs on the 3rd June 1896. On the 3rd August 1896, the Plaintiffs sued to enforce their security against the mortgagors and after a protracted litigation, to the details of which it is not necessary to refer, obtained a decree on the 2nd August 1901. Execution was taken out in due course, the properties were brought to sale and were purchased by the decree-holders on the 21st May 1902. When they proceeded to take delivery through the Court, on the 12th December 1902, they found Defendants Nos. 1 to 7 in possession of the properties. This led to proceedings under sec. 335, C.P.C, which were decided against the Plaintiffs on the 28th March 1903, and on the 4th November following, they commenced the present action. The history of the title of the contesting Defendants who may be divided into two groups, appears to be as follows: The first two Defendants, under whom Defendants Nos. 5 to 7 hold as sub-tenants, trace their title to a mortgage executed in favour of their father by the owners on the 31st March 1892, in respect of plots 7 and 9 to 12. They enforced this security, obtained a decree, brought the properties to sale, purchased them on the 15th May 1902, and got into possession with the help of the Court. The 1 third and fourth Defendants trace their title to a conveyance of plots 2, 3, 5 and 6, executed by the owners in their favour on the 24th September 1890, and they allege that they have been in possession of the parcels purchased by them ever since their title accrued. It is clear, therefore, that the first four Defendants were, interested in the equity of redemption, at the time when the Plaintiffs sued to enforce their security, but were not made parties to that litigation, because the Plaintiffs were not aware that they had or claimed any interest in the properties over which their mortgage extended. The result, therefore, has been, that each set of mortgagees has enforced their securities behind the back of the other. In the Court of first instance, as also before the learned District Judge, each of the claimants appears to have challenged the bonâ fides of the transaction upon which the title of the others was based, but the Court below have found that the transactions referred to were all genuine, and in this Court no dispute has been raised on the subject. The substantial question, therefore, which calls for our decision, is as to the principles upon which the conflicting rights of the parties are to be adjusted. The Subordinate Judge held that the Defendants were bound to redeem the Plaintiffs and that they would be entitled to continue in possession of the parcels claimed by them upon payment to the Plaintiffs of a proportionate share of the money for which the latter purchased at the execution sale. This view was affirmed on appeal by the District Judge. The Plaintiffs have appealed to this Court, and on their behalf it has been contended, first, that the Defendants ought not to be allowed to redeem on the basis of the purchase-money, but that they should be called upon to redeem on the basis of the mortgage; secondly, that in taking the accounts on the footing of the mortgage accounts ought to be taken as if the mortgage has never been enforced; and, thirdly, that the Defendants ought to be called upon to redeem the entire mortgage. These contentions have been controverted by the Respondents, and it has further been argued on their behalf, first, that the remedy of the Plaintiffs is by a fresh suit to enforce their security in the presence of all the parties interested in the equity of redemption, and that if the present suit be regarded as an action of that description, it is barred by limitation and secondly, that the second mortgagee Defendants are entitled to credit for a payment which they made on the 4th July 1902, under sec. 171 of the Bengal Tenancy Act, to save the mortgage properties from sale in execution of a decree for rent obtained by the superior landlord against the mortgagors.

The first ground taken on behalf of the Respondents raises a question which, if decided in their favour, would render unnecessary an examination of the other questions involved in the appeal and must consequently be considered first. It was contended by the learned vakil for the Respondents, that it is obligatory upon a mortgagee to bring before the Court all persons interested in the equity of redemption and that if he fails to do so, his decree becomes infructuous, and his only remedy is by a fresh suit in the presence of proper parties. In our opinion there is no foundation for this contention. It is not necessary for us to consider whether it is open to a mortgagee, who has omitted to implead a necessary party, to maintain another suit to enforce his security against the parties excluded; that he may do so, under certain circumstances, appears to have been affirmed by the Allahabad High Court in Dharam Singh v. Anganlal(1) and Lachhman Das v. Dallu(2). But even assuming that it is open to a mortgagee to enforce his security by a fresh suit against an excluded party, it is well settled that it is not obligatory upon him to do so. It is sufficient to refer to the decision of this Court in Har Prashad Lal v. Dal Madan Singh. There a first mortgagee who had no notice of a second mortgage sued the mortgagor alone and obtained a decree, in execution of which the mortgage-property was sold; meanwhile the second mortgagee had enforced his security behind the back of the first mortgagee, obtained a decree, purchased the property and taken possession of it. In a suit by the purchaser at the sale held in execution of the decree upon the first mortgage, it was ruled that he was entitled to possession subject to the exercise of the right of redemption of the Defendant. It appears to have been contended, that as the suit had been brought more than twelve years after the due date on the first mortgage, and as the Plaintiff would be barred by limitation if he brought a second suit to enforce his security as against the party excluded from the previous suit, his claim ought not to succeed. This contention was overruled by the majority of the learned Judges who decided that case which appears to us to be applicable to the circumstances of the case now before us. The first ground taken on behalf of the Respondents must, therefore, be overruled.

The first ground taken on behalf of the Appellants raises the question whether the Defendants should be called upon to redeem the Plaintiffs on the footing of the purchase money paid by the latter at the execution sale or whether the Defendants are bound to redeem on the basis of the mortgage which is the foundation of the title of the Plaintiffs. In support of the first of these alternatives, reliance is placed by the Respondents upon a passage in the judgment of Mr. Justice Pontifex in Kasumunnissa v. Nilratna, Bose, in which that learned Judge observed as follows: “If on the other hand it (that is, the price paid by the purchaser at the sale of the first mortgagee) was less (that is, less than the amount due on the mortgage-decree), we think the Defendant is entitled to redeem on paying the amount paid by the Plaintiff as purchase-money.” In support of the second alternative, reliance is placed by the Appellants upon a decision of this Court in Girish Chander v. Kedar Nath, in which it was ruled that the purchaser at the sale of the second mortgagee is bound to pay the purchaser at the sale of the first mortgagee, as the price of redemption, not merely what the latter had paid at the execution sale, but what was due upon the first mortgage. It is obvious, therefore, that there is a conflict of authorities in this Court upon the point raised before us, and we were invited by the learned vakil for the Respondents to refer the question for decision to a Full Bench. It is not necessary, however, to adopt the course suggested, first, because the decision upon which reliance is placed on behalf of the Respondents appears to be inconsistent with at least four decisions of the Judicial Committee to which we shall presently refer, and by which it must be taken to have been impliedly overruled, and, secondly, because the decision upon which reliance is placed on behalf of the Appellants is based upon an unquestionably sound principle. The decision of Mr. Justice Pontifex to which reference has been made was applied by this Court in the case of Chunder Nath v. Nilakant(6), in which Mr. Justice Cunningham held, that the Defendants were entitled to redeem the Plaintiff upon payment of the money which the latter had paid, as consideration for purchase at the execution sale. The case was then taken on appeal before the Judicial Committee [Nilakant v. Suresh Chandra(7)]. Their Lordships reversed the decision of the High Court upon grounds with which we are not concerned at present, but they expressed their disapproval of the terms upon which redemption had been decreed by the High Court in the following passage:— “hey (the High Court) go at once to say of their own discretion, what shall be the price paid for the mortgage-property…. He (the purchaser) is to have the whole property taken away from him by Khogendra on receipt of what he has paid for the equity of redemption alone, and not to have a single farthing for that portion of his mortgage-debt, which, the Court themselves say, ought to be charged upon the property. Nor is he to have anything for Khogendra's cost which he paid, or for his own costs of that suit which failed by Khogendra setting up a fictitious title. The hardship of such a decree upon the Plaintiff is apparent in stating the facts. Their Lordships think, that it is founded upon entirely wrong grounds. It is not consistent with itself, because it does not give to the mortgagee what the Court say he is entitled to have, but besides the inconsistency, it is based upon wrong grounds.” It is not easy to perceive how the correctness of the rule laid down by Mr. Justice Pontifex can be seriously maintained in view of the observations of their Lordships of the Judicial Committee which we have just set out. It further appears, that substantially the same view was adopted in the cases of Syed Lutf Ali v. Futteh Bahadur(8), Umes Chander Sircar v. Zahur Fatima(9) and Ganya Pershad v. Land Mortgage Bank(10). In the first of these cases, the High Court treated the purchaser as mortgagee in respect of his purchase, but refused to give him a charge for the full amount of the mortgage-money; Sir Richard Couch, in delivering the judgment of the Judicial Committee, pointed out that there was no ground for apportioning the original mortgage-debt in the manner proposed. In the second case, their Lordships held that the party who had been excluded from the mortgage-suit, and whose right of redemption was consequently unaffected by the decree in that suit, was entitled to exercise his right upon payment of such sum as could be rightly claimed in respect of the mortgage. In the third case, it was ruled by the High Court that the amount payable for redemption would be, not the amount of the purchase-money paid by the Plaintiffs but the amount due under his mortgage; this view does not appear to have been even questioned when the case was taken on appeal to the Judicial Committee, and the decree which their Lordships made proceeded upon the assumption that the redemption was to be effected upon the footing of the mortgage and not of the purchase-money. It is abundantly clear, therefore, that the four decisions of the Judicial Committee to which we have referred lay down a rule inconsistent with the principle enunciated by Mr. Justice Pontifex in Kasumunnissa v. Nilratna. It is also obvious from the judgment of this Court in Girish Ckunder v. Kedar Nath, that the principle adopted therein is based upon good reasons. The learned Chief Justice referred to a passage from the judgment of the Supreme Court of the United States in Collins v. Riggs(11), in which Mr. Justice Bradley observed that the party offering to redeem proceeds upon the hypothesis, that as to him the mortgage has never been foreclosed, and he can consequently redeem only upon payment of the whole mortgage-debt. We invited the learned vakil for the Respondents to point out the fallacy, if any, in this argument, and to suggest any intelligible grounds for the rule that to redeem property which has been sold under a mortgage for less than the mortgage-debt, it is sufficient to tender the amount of the sale; but the learned vakil had to concede, that he was unable to advance any arguments which would support this position. We further find, that the grounds of the rule have been fully examined and the doctrine affirmed in the cases of Jones v. Vandorem(12), American Loan Co. v. Atlanta(13), McCabe v. Bellows(14), McGongh v. Sweetzer(15), and Fields v. Danetonz(16). We see no reason, therefore, to question the correctness of the rule that one who redeems after a foreclosure sale, must pay the whole amount of the mortgage-debt although the land sold for a less sum. The view we take is in accordance with that adopted by the other High Courts in India; see Dadoba v. Dumodar(17), Sivathi v. Ramasubbayar(18), Dip Narain v. Hira Singh(19), and Wahidunnissa v. Gobardhan Das(20). The first ground taken on behalf of the Appellants must consequently prevail.

The second ground taken on behalf of the Appellants raises the question, whether in fixing the price for redemption payable by the Defendants, accounts ought to be taken on the basis of the Plaintiffs' mortgage upon the assumption that it has never been enforced. It was argued on behalf of the Respondents that accounts ought to be taken on the basis that the mortgage-debt was transformed into a judgment-debt in the suit of 1897 in which the Plaintiffs sought to enforce their security. The question raised is not free from difficulty, but upon an examination of the authorities to which we shall presently refer, we are disposed to take the view put forward by the Respondents. In the case of Dadoba v. Damodar, it was laid down by the Bombay High Court, that when a party who has been excluded from a mortgage-suit, and has thus not been afforded an opportunity to redeem, subsequently seeks to exercise his right of redemption, he is entitled to do so upon the same terms, as if he had been made a party to the original suit. Substantially the same view was adopted by the Allahabad High Court in Wahidunnissa v. Gobardhan Dap. The rule thus laid down appears to be based upon an intelligible principle. The party who has been improperly excluded from a mortgage-suit, is entitled to claim that he should not be placed in a worse position than what he would have occupied, if he had been made a party to the original suit. If he had been so made a party, he would have been entitled to redeem upon payment of the sum ascertained by the decree, together with interest upon such sum at the Court rate between the date of the decree and the date of actual realization. To put the matter in another way, his liability to pay interest at the contract rate would have terminated on the date of the decree, when the liability would have passed from the domain of contract into the domain of judgment. [See the decision of the Judicial Committee in Rani Sundar Koer v. Rai Sham Kishen]. From that date his liability would have been determined by the decree and interest would have run at the Court rate allowed by the decree. It is obvious that a contrary view would enable the mortgagee to improve his position by reason of his failure to implead proper parties in the mortgage-suit. To take one concrete illustration: A., a mortgagee, is bound to enforce his security within twelve years from the due date. He sues just before the expiry of the period of limitation, and obtains a decree behind the back of one of the persons interested in the equity of redemption; the decree allows him interest at the contract rate up to the date fixed for repayment in the decree, and interest at the Court rate, thereafter. He brings the property to sale, purchases it, finds the excluded person in possession and seeks to eject him. The latter offers to redeem. Can the mortgagee legitimately ask to be paid all that would be due upon his mortgage upon the assumption that the security has never been enforced, and that, consequently, accounts ought to be taken on the footing of interest at the contract rate up to the date of the decree in this second suit for possession? We are of opinion, that accounts ought not to be taken upon such a basis. In the first place, the mortgagee cannot legitimately ignore the fact, that the mortgage-debt has been converted into a judgment-debt, and execution has followed thereupon, because it is only in his character as a purchaser and not as mortgagee, that he is entitled to possession. In the second place, if the suit for possession were treated as in substance a suit to enforce the security against the previously excluded person, the mortgagee would be successfully met with the plea of limitation. In our opinion complete justice can be done to the parties, if accounts are taken on the basis of the mortgage, and if it is further held, first, that the mortgage is enforced in the suit in which it was, as a matter of fact, enforced, and, secondly, if interest at the Court rate is allowed to run as provided in the mortgage-decree up to the date fixed for redemption in the suit for possession. Any other view would give an unfair advantage to one or other of the parties. If the accounts were taken on the basis of the mortgage, and interest was allowed at the contract rate up to the date of the decree in the suit for possession, the mortgagee would get an undue advantage. If on the other hand, the person excluded was allowed to redeem upon payment of merely what was fixed in the mortgage-decree, he would get an undue advantage, as he would be excused interest upon money of which he had the benefit, between the date of decree in the mortgage-suit and the date of payment in accordance with the decree in the suit for possession. We may further point out that it would not be fair to treat the mortgage-decree as absolutely binding upon a person who was no party thereto. The rule upon this subject is laid down in Fisher on Mortgages, 5th Ed., secs. 1672 and 1705. Reference may also be made to the decisions in Dick v. Buller(22) and Wresion v. Vize(23), in illustration of the principle to be applied to cases in which a puisne mortgagee, who has been left out of a prior mortgagee's suit, seeks to challenge the accounts on which the decree, he is subsequently called upon to satisfy, is based. In the former case, Lord Chancellor Hart observed that it is inconsistent with first principles to bind a man by an account taken behind his back, and, therefore, the puisne mortgagee cannot be bound by accounts respecting the original mortgage, to which he is not a party. In the second case, Lord Chancellor Sugden pointed out that although this is the general principle, the account would not be reopened unless there was fraud or collusion and that particular errors must be stated to justify an order to reopen the accounts. On the whole, therefore we are disposed to hold that a person in the position of the present Defendants is entitled to have his liability determinated in accordance with two principles, namely, first, that as he was not a party to the mortgage-suit, the account, ought to be taken in his presence, and to entitle him to exercise this right he must indicate specifically the grounds on which he assails the accuracy of the accounts; secondly, that when the accounts have been so retaken, if necessary, the amount due on the mortgage up to the date for repayment fixed in the mortgage-decree is the measure of his liability, and he if entitled to redeem upon payment of this sum together with interest at the Court rate up to the date of actual payment. The application of these principles does full justice to both parties; the mortgagee does not get an unfair advantage by reason of his own laches, and the excluded person is not placed at a disadvantage inspite of his exclusion from the former suit. Each party is placed as nearly as may be in the position which he would have occupied if all the parties interested in the mortgage property had been brought before the Court in the first suit. The view we take is supported by the principles explained by the Judicial Committee in the case of Rani Sunder Koer v. Rai Sham Kishen, and is not inconsistent with those laid down in the cases of Umes Chander v. Zahur Fatima and Ganga Pershad v. Land Mortgage Bank. In the former case, the incumbrancer who had obtained possession of the mortgaged property in execution of his decree was allowed interest at the contract rate only up to the time when she took possession of the mortgaged property. In the second case, it appears that the decree in the mortgage-suit had been based upon a compromise and the question turned mainly upon the construction to be put on the consent decree, whether it had or had not reduced the interest as provided by the contract. Their Lordships held that the interest had not been varied. No doubt, their Lordships directed the account to be taken on the basis of the mortgage-bond, but we are unable to find any indication that the contract rate was to continue, even after the date fixed for re-payment in the mortgage-decree. We must consequently hold that in the present case, the account is to be taken on the basis of the mortgage, that interest at the contract rate is to run up to the date of the decree in previous suit, that is, up to the 2nd August 1901, and that the amount so determined, is to carry interest at the Court rate up to the date fixed for re-payment by the decree to be made in the present suit. The second point, therefore, taken on behalf of the Appellants must be answered in their favour.

The third ground taken on behalf of the Appellants raises the question, whether the Defendants are entitled to redeem to the extent of the properties purchased by them. As the Plaintiffs themselves have purchased the equity of redemption, the Respondents are clearly entitled to claim partial redemption; see Surjiram Maruari v. Berhamdeo Persad and Hari Kissen v. Veliat Hossein.

The second point urged on behalf of the Respondents raises the question, whether in taking the accounts of what is due to the Plaintiffs on their mortgage, the Defendants are entitled to credit against them, for a sum of about Rs. 425, which they allege to have paid in satisfaction of a decree for rent obtained against the mortgagors by the superior landlords of the mortgaged property. It may be conceded that when the Defendants made the payment, they were interested in doing so. It is not also disputed, that the mortgage under which the Plaintiffs claim has been saved by this payment quite as much as the mortgage under which the Defendants claim. But it is not sufficient to impose a liability upon the Plaintiffs, as they are not the persons who were bound by law to pay the money within the meaning of sec. 69 of the Indian Contract Act. The rent was due for a period, when the mortgagors and the purchasers from them were in possession and the Plaintiffs as first mortgagees were not under any liability to pay the rent due to the superior landlord any more than the second mortgagees. We are, therefore, of opinion that the Defendants are not entitled to credit against the Plaintiffs in respect of the sum alleged to have been paid by them. It is not necessary, consequently, to examine the effect of the provisions of sec. 171 of the Bengal Tenancy Act,—though it may be observed that it is extremely doubtful, whether that section has any application to the present case, as the Defendants, according to their own case, did not make the payment in time to prevent the sale, but made the payment after the sale to have it set aside. [See Gopi Nath v. Ishur Ghunder(26)]. The second point taken on behalf of the Respondents must be overruled.

The result, therefore, is that the appeal must be allowed, and the decree of the District Judge discharged. The possession of the Plaintiffs in plots 1, 4, 8 and 13 will be confirmed. An account will be taken of what was due to the Plaintiffs under their mortgage of the 12th March 1890, up to the date of the decree in the previous suit, the 2nd August 1901. The amount so determined together with the costs allowed to the Plaintiffs in the previous suit will carry interest at 6 per cent from 2nd August 1901 up to six months from the date on which the decree of this Court in this suit is signed, Defendants Nos. 1 and 2 (who have purchased 51 bighas 1 cottah out of 52 bighas 6 cottahs purchased by the Plaintiffs) and their sub-tenants, Defendants Nos. 5 to 7, will be entitled to redeem plots 7, 9, 11 and 12 upon payment of a proportionate share of the sum determined as directed hereinbefore. Similarly Defendants Nos. 3 and 4 (who have purchased 3 bighas 8 cottahs) will be entitled to redeem plots 2, 3, 5 and 6 upon payment of a proportionate share. Redemption must be effected within six months from the date upon which the decree is signed. Upon failure to do so, on the part of either set of Defendants, the Plaintiffs will be entitled to recover possession as against that set.

As regards the costs of this litigation, we are of opinion that as each party has only partially succeeded in its contention, each party should bear its own costs in all the Courts, and we order accordingly.

N.G

Appeal allowed.