Mookerjee, J.:— The facts of the case which gave rise to the litigation out of which this appeal arises, lie in a narrow compass and are not disputed before this Court. On the 28th June 1893, the Defendants first and second party executed a mortgage of some immoveable property in favour of one Gobind Ram Marwari to secure repayment of a loan of Rs. 620. On the 24th February 1896, they executed a second mortgage of the same property in favour of the Plaintiff-Respondent as security for a loan of Rs. 775. Shortly after, the first mortgagee brought a suit to enforce his security to which he joined as Defendant not only the mortgagors but also the second mortgagee. On the 21st September 1896, the usual mortgage-decree was made in favour of the first mortgagee, under which it was directed that upon failure of the Defendants to pay, within six months, the decretal amount (about Rs. 1,100) the mortgaged property be sold. Payment was not made, the decree-holder took out execution, the mortgaged property was sold on the 20th September 1897 and was purchased by the present Appellant for Rs. 600. On the 31st August 1903, the second mortgagee commenced this action to enforce his security upon the allegation that at the sale held in execution of the decree obtained by the first mortgagee, the property had been bought in by the mortgagor in the name of the ostensible purchaser and that, consequently, the validity of the second mortgage had not been affected in any manner. The claim was resisted by the prior purchaser on the ground that he was the beneficial owner and that the sale at the instance of the first mortgagee had extinguished the second mortgage. The Subordinate Judge held, upon the evidence, that the purchaser was not a benamdar for the mortgagor, that the sale at the instance of the first mortgagee had extinguished the second mortgage because the second mortgagee had failed to avail himself of the opportunity to redeem given by the decree and that the only relief to which he was entitled was a personal decree against the mortgagor. Upon appeal by the Plaintiff, the District Judge held that the purchaser had been satisfactorily proved to be a benamdar for the mortgagor, that consequently the second mortgage still subsisted and could be enforced against the property; he accordingly made the usual mortgage-decree in favour of the Plaintiff. The Defendant third party, the purchaser at the prior sale, has alone appealed to this Court, and on his behalf the decision of the District Judge has been challenged substantially on two grounds, namely, first, that the effect of the sale in execution of the decree obtained by the first mortgagee was to extinguish the second mortgage even though the property was purchased at such sale by the mortgagors themselves and secondly, that it was not competent for the mortgagee to make as party Defendant the present Appellant who claimed adversely to the title of the mortgagor and the mortgagee and that such claim of paramount title could not be litigated in a mortgage-suit. On the other hand it has been argued on behalf of the Plaintiff-Respondent that the first point cannot be raised by the Appellant who according to the findings of the Court below which cannot be questioned in second appeal, has no beneficial interest in the property and that the second point ought to be answered against the Appellant, first, because no objection to the frame of the suit was taken in the Court of first instance and, secondly, because the Appellant was a proper party to the suit. There is some apparent force in the contention of the Respondent regarding the first point taken on behalf of the Appellant, but as will appear presently a excision upon the first question is essential for the determination of the second question and consequently both the grounds taken on behalf of the Appellant require consideration.

In support of his first ground, it was argued by the learned Vakil for the Appellant that in the suit instituted by the first mortgagee not only the mortgagors but also the second mortgagee was made a party, that the decree gave an opportunity to all the Defendants to redeem and that as the second mortgagee failed to make the payment, the execution sale extinguished his mortgage. Now, it may be conceded, that if the property had been purchased by a stranger, the effect would have been precisely what is stated by the learned vakil for the Appellant; the effect of a sale under such circumstances is to pass the property to the purchaser free of both the prior and the puisne incumbrances and the second mortgagee is entitled to the benefit of the surplus sale-proceeds after the claim of the first mortgagee has been satisfied: for, as observed by their Lordships of the Judicial Committee in Raja kishen Dutt Ram v. Momtaz Ali Khan(1), the effect of a sale under a power-of-sale is to destroy the equity of redemption in the lands and to constitute the mortgagee exercising the power, a trustee of the surplus proceeds after satisfying his own charge, first, for the subsequent incumbrancers and ultimately for the mortgagor; the estate if purchased by a stranger passes into his hands free from all the incumbrances. If, however, upon a sale by the first mortgagee, the property is purchased by the mortgagor himself, other considerations arise and the mortgagor can only acquire the estate, subject to the second mortgage upon the principle that it is his duty to discharge the estate for the benefit of the second mortgagee. The rule which governs cases of this description was laid down by Sir W. Rage Wood, V.C in Otter v. Lord Vaux(2). There a mortgagor who had made two successive mortgages of his estate to different persons purchased the estate from the first mortgagee under a power-of-sale contained in his mortgage and subsequently granted further incumbrances to other persons who had notice of the second mortgage; the purchase-money was not sufficient to pay off the first and second mortgages. It was ruled that the second mortgagee was entitled to a charge upon the estate for the deficiency and that he might obtain a decree of foreclosure against the mortgagor and the subsequent mortgagees. It was argued on the one hand that when the owner bought the estate and paid enough to satisfy the first mortgagee, he did so for the benefit of subsequent mortgagees to whom he continued liable and could not set up the prior charge against theirs. It was contended on the other hand that she mortgagor having purchased under the power-of-sale, became possessed of a new estate on which the holders of the incumbrances created after such purchase had the first charge. The learned Vice-Chancellor decided that the case was one in substance, in which a mortgagor liable to pay a sum of money to a first incumbrancer paid it off and took a transfer of the charge and that it made no difference that the transaction purported to be carried out under a power-of-sale; the mortgagor could not be permitted to treat the charge as still subsisting to be used against his own subsequent incumbrancer. It was further observed that this equity does not depend upon the doctrine of merger or extinction of the debt by the effect of the payment. But it depended rather on the ground that the mortgagor would be estopped in consequence of his mortgage from setting up that debt against the second mortgagee; otherwise, the mortgagor having in his pocket money enough to pay off the first mortgage might say “I will not pay off the mortgage but buy the estate free from all claims” which would be to allow him to avail himself of the machinery of the sale to apply the fund to relieve the estate in his own favour and not in favour of those to whom he has pledged it. The true ground of this decision has sometimes been overlooked, see, for instance, In re Howard(3). But it was pointedly stated by Wood, V.C, himself in Bevan v. Habgood(4), it was the duty of the mortgagor to pay up the first mortgage, the power-of-sale under which could arise only on the mortgagor's default; the mortgagor cannot take advantage of his own default to purchase the estate under the power to the prejudice of the second mortgagee with whom he had contracted to give a security upon the estate to the amount of the money which he had advanced. That this is the true foundation of the rule is manifest from the judgment of Lord Chancellor Cranworth delivered in the appeal which was preferred in that case Otter v. Lord Faux(5), in which he observed that no distinction could be based upon the circumstance that the title of the mortgagor arose under the power of sale of the first incumbrancer; to do so would be to sacrifice substance to form. To all intents and purposes the mortgagor had paid a sum of money to his first incumbrancer and got back the estate for the benefit of subsequent incumbrances created by himself, against which he could not set up the prior debt. In other words, as put by Palles, C.B, in In re Cork Harbour Docks Co.(6), the payment made by the mortgagor must be attributed to his character as debtor and not to an alleged character of purchaser; in a Court of Equity, it must be irrebuttably presumed that the owner of the estate did that which he was bound to do by reason of his being the debtor himself, namely, that he paid off his debt and did not become a purchaser of it for the purpose of keeping up his own prior debt against his own subsequent creditor. The principle that an owner of the fee subject to a charge, who is himself the principal and primary debtor and is liable personally and primarily for the debt secured, cannot pay off the charge and by any form of transfer keep it alive with a view to use it as a shield against a subsequent creditor of his, who holds an incumbrance on the estate, was recognized in Exp. Bisdee(7), Johnson v. Webster(8) and Platt v. Mendel(9). [See also Fisher on Mortgages, 5th Ed., sec. 1530, and Coote on Mortgages, 7th Ed., p. 925]. It is also widely recognised and applied in the American Courts. Thus in Gould v. Day(10), it was held that the owner of an estate who had purchased the property at a tax-sale (which in some of its incidents is analogous to a sale for arrears of revenue in this country and passes the property to the purchaser free of incumbrances) could not rely upon the tax-title as against subsequent incumbrances. Mr. Justice Field in delivering the unanimous opinion of the Supreme Court of the United States observed that one cannot have a lien upon his own property except where equity interposes and, to prevent a failure of justice, keeps the lien outstanding and that, in the events which had happened, there was no interference of equity and no occasion for its interference. The purchaser had practically effected a redemption of the prior charge and could not be supposed to have thereby impaired or destroyed his original title. The same principle was applied by Mr. Justice Holmes in Ayer v. Philadelphia Brick Co.(11) and by Mr. Justice Mitchell in Houston v. Nord(12). [See also Jones on Mortgages, secs. 864 and 1887, 6th Ed., Vol. I, p. 904, Vol. II, p. 142, and Pomeroy on Equity Jurisprudence, sec. 797, 3rd Ed., Vol. II, p. 1409]. The principle deducible from these authorities has also been held applicable to cases in this country. See Ramawtar Singh v. Tulsiram(13), Shyama Churn v. Ananda Chandra, Raghu Nath v. Lalji(15) and Gamga Sahay v. Tulahiram(16). Reference may also be made to the decision of the Judicial Committee in Raja Kishen Dutt Ram v. Momtaz Ali Khan, which affirms the general principle, that most acquisitions by a mortgagor enure for the benefit of the mortgagee, as agreeable to equity and good conscience and in Syed Rutf Ali Khan v. Futteh Bahadoor which shows that a purchase by a mortgagor at an execution sale at the instance of his second mortgagee does not entitle him to possession as against the purchaser in execution of a decree obtained against him by his first mortgagee. It must be held consequently in the present case that if the mortgagor himself really purchased the property at the sale held in execution of the decree obtained by the first mortgagee, such purchase did not in any way prejudice the seen mortgagee. It was contended, however, that as the second mortgagee was a party to the suit by the first mortgagee and had an opportunity given to him for redemption, the validity of his mortgage has been affected by the execution sale which was brought about quite as much by reason of his failure to satisfy the mortgage-decree as of the default of the mortgagor. In my opinion there is no force in this contention. The mortgagor is the principal and the primary debtor; it was he who was liable, personally and primarily for the debt secured. If he had satisfied the mortgage-decree as he ought to have done, there can be no question that the second mortgagee would have been entitled to the benefit of the security of the redeemed property. Instead of discharging the debt due on the first mortgage, he allows the property to be sold and purchases it himself for a sum which is not sufficient to satisfy even the amount due on the first mortgage. The transaction is, in substance, a partial satisfaction of the claim of the first mortgagee and it cannot rightly be held that the purchase by the mortgagor has in any manner extinguished the second mortgage. The first point taken on behalf of the Appellant cannot consequently be sustained and must be overruled.

The second point taken on behalf of the Appellant raises the question, whether or not he was a proper party to this suit. It was contended by the learned vakil for the Appellant, that the Plaintiff mortgagee cannot be allowed so to frame, his suit as to draw into controversy the title of a third party who is in no way connected with the mortgage and who has set up a title paramount to that of the mortgagor and mortgagee; and in support of this position reliance was placed upon the decision of this Court in Jaggesicar Dutt v. Bhuban Mohan Mittra. The learned vakil for the Respondent did not dispute the correctness of this rule, but he argued that the present case falls within two of the exceptions indicated in the decision to which reference has been made. In my opinion, this contention is well founded. As was pointed out in the case of Jaggesicar Dutt v. Bhuban Mohan Mittra the estate or interest in the land which is drawn within the operation of a mortgage suit, which will be affected and bound by the decree, is the estate created and passing by the mortgage, or estates or interests subsequently acquired by the mortgagor, and enuring by way of estoppel to the benefit of the mortgagee; and consequently, not only the mortgagor, but all persons deriving title from him subsequent to the mortgage and bound thereby as holders of different fragments of the equity of redemption are necessary and proper parties to a suit to enforce the mortgage [see Wells v. American, Mortgage Co.(19)]. These observations may be appropriately applied to the circumstances of the present case. Here the Appellant does not claim adversely to the title of the mortgagor and the mortgagee; he does not question the validity of the mortgage at its inception; but he contends that subsequent to the mortgage, he has acquired a title by reason of which the mortgage has been destroyed. The mortgagee contends, on the other hand, that the Appellant is a mere shadow of the mortgagor, and that in spite of the transaction which is alleged by him to be the foundation of his title, the mortgage is still operative and enforceable. The case, therefore, falls within the principle of the decision in Converse v. Michigan Dairy Co.(20) because it is really not one of conflicting title; there is no hostility to the title of the mortgagor, and the question is rather one of paramount lien than paramount title. The mortgagee alleges that by reason of events which have happened since the execution of the mortgage, his interest has not been affected, the Defendant contends that he has acquired a lien prior to that of the mortgagee. Under these circumstances, the mortgagee had the right to have this question determined before the mortgaged property went to sale, as otherwise, the satisfaction of the mortgage debt would be seriously imperilled. It must also be remembered, that whether an asserted claim is such an adverse one as to come within the prohibition of the general rule, depends not upon what is set up in the answer regarding it, but rather upon what the plaint alleges, and the evidence shows to be its real character, [Wilkinson v. Green(21)]. In the case before us, the Appellant was brought on the record with a view to determine whether the title which he alleges to have acquired after the Plaintiff's mortgage, is or is not a real title, which is entitled to priority over the mortgage sought to be enforced and this is, in my opinion, a question which may be tried and adjudged in a mortgage-suit, [Lego v. Medley(22)]. The case bears close analogy to the class of cases in which a Defendant who has purchased a mortgage-property at a tax-sale after the creation of the mortgage, claims that such tax-title entitles him to hold the property free of the mortgage. It has been held that in such cases the validity of the tax-title and its effect upon the mortgage may be litigated, on the ground that the person who sets up such a title, subsequent in point of time to the mortgage, does not claim under a stranger but in effect claims an interest in the equity of redemption, [see Volteh v. Soloman(23), Wilson v. Jamison(24) and Lyon v. Powell(25)]. If subsequently to the execution of the mortgage the property has been sold and the purchaser has acquired a valid title to hold it free of the mortgage, the right of the mortgagee to appropriate the property to the satisfaction of his debt no longer exists; this is a question which can be investigated appropriately only in a mortgage suit. The mortgagee should therefore be permitted to bring the claimant before the Court for the purpose of determining whether his own rights have or have not been divested by the sale. If this was not done, there would be a substantial impediment to the enforcement of the mortgage, as no third person would purchase the property at a fair price, and assume the burden of a subsequent litigation with the prior purchaser. This view was taken by the Supreme Court of the United States in Mendenhall v. Hall(26), in which it has held that when a mortgagee comes into Court, and asserts his rights as against a tax-sale of the mortgaged property, alleged by him to have been collusively made by the mortgagor and the purchaser to remove the mortgage lien, he may proceed against both the purchaser and the mortgagor. [See also Hefner v. N.W Mutual Life Insurance Co.(27)], in which it was held that although the holders of a prior adverse title were not proper parties to a mortgage-suit, yet where the whole title was in the mortgagor at the date of the mortgage, and a claimant alleged that he had subsequently acquired title superior to that created by the mortgage, the owner of such alleged title was a proper, if not a necessary, party to a foreclosure suit, in which it would be competent to the Court to determine the validity or invalidity of his title. I must consequently hold that the Appellant was a proper party to the present suit. It must also be further held that even if he was not a proper party, it was not competent to the Appellant to take the objection at the present stage of the proceedings. No objection was taken by him to the frame of the suit. In the Court of first instance, he did not ask to be dismissed from the suit: on the other hand, he accepted the challenge of the Plaintiff, and after trial on the merits, succeeded in obtaining a favourable decision from the Subordinate Judge. Upon appeal, the District Judge has taken a different view of the evidence. He cannot, because he has been defeated, rightly ask for a reversal on the ground, that the issue was not triable in this action. This view is supported by the decision of this Court in Hare Krishna v. Robert Watson & Co.(28), and was also indicated in my judgment in Jaggeswar v. Bhuban Mohan, which makes mention of some of the possible exceptions to the general rule. The question is not one of jurisdiction, but rather of the frame of the litigation and the scope of its inquiry, in other words, to use the language of Mr. Justice Gray in Hefner v. N.W Mutual Life-Insurance Co., the question, whether this issue should be determined in the present suit to enforce the mortgage or in a separate action, was a question of multifariousness or of convenience affecting the discretion only and not the jurisdiction of the Court. I agree entirely with the observations of Sherwood, C.J, in Bensieck v. Cook(29), in which that learned Judge remarked as follows: “Having assumed the roll of being a proper and necessary party, Defendant, having pleaded to the merits, she cannot, after being cast in the suit, now change front, and insist that error occurred in making her a party Defendant. Courts of justice cannot be trifled with in this way. Parties litigant are not allowed to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold. Having elected to adopt a certain course of action, they will be confined to that course which they adopt.” [See also Bigelow on Estoppel, 5th Ed., pp. 673, 717]. In my opinion, it is too late for the Appellant to raise any objection to the frame of the suit. It follows therefore that the second ground taken on his behalf cannot be supported.

The appeal consequently fails and must be dismissed with costs.

Rampini, J.— I agree.

B.C

Appeal dismissed.