1. The question which arises in this second appeal is as to the effect upon a submortgagee of a decree to which he was not a party declaring that a sale to the mortgagor by the guardian of a minor is not binding upon the minor. The sale was effected under Ex. 4 on 20th March 1902 to one Suppayya Maniyagaran. In 1908 the vendee usufructuarily mortgaged the property to one Ramasami Asari and in 1911 the latter submortgaged it to defendant 1. Upon the submortgage O.S. No. 634 of 1914 was filed impleading the mortgagor and the mortgagee and a decree was obtained on 12th December 1914. The decree-holder brought the property to sale in 1922 and bought it himself. Meanwhile the minor, on attaining majority, had sued in O.S. No. 657 of 1915 to set aside the alienation. He made parties to the suit the mortgagor and the mortgagee but not the submortgagee. He obtained a decree in 1917 which directed that the sale should hold good if the defendants paid to the decree-holder a sum of Rs. 260, which was the part of the sale price found not binding upon him. If they failed to do this he might pay them the balance of Rs. 490, the whole price being Rs. 750, and take the property. The latter course was followed and the decree-holder given delivery. In 1919 he sold the property to the plaintiff, who has now sued defendant 1 and his representatives for a declaration of his right to possession and for an injunction restraining them from entering upon the property. The question therefore is whether by force of the decree in O. S. No. 857 such a declaration and injunction may be given notwithstanding that the submortgagee was not a party to the suit.

2. It is unquestionable, as a general proposition, that where a person possesses an interest, acquired before the suit, in an estate, which interest is not represented by any of the parties to the suit, the decision will not be res judicata against him. Thus a vendee from a party will not be bound. The same principle has been applied to the case of a lessee in Mussan Haji v. Thavara Keran A.I.R. 1921 Mad. 708. The position of a mortgagee is more closely comparable than either of these to that of a submortgagee. It was held in Bonomalee Nag v. Kaylash Chandra [1879] 4 Cal. 692 following an earlier case in Dooma v. Joona [1809] 12 W.R. 362 that a simple mortgagee was not bound by the decision in a suit regarding a right of way over the property. This case again was followed in Soshi Bushan v. Gogan Chander [1895] 22 Cal. 364. The learned Judges in that case refer to the general rule that a judgment inter partes binds only the parties and persons deriving title from thorn subsequent to the date of the judgment. They recognize that exceptions exist to the rule based either upon grounds of justice and expediency or upon express legislation, the cases of a Hindu widow or a shebait being referred to as instances where the party must be held to represent the estate completely. But the same does not apply to the proprietor of an estate after he has mortgaged it:

The mortgagee can always be ascertained; very often his interest in the estate may be much greater than that left in the mortgagor; and sometimes, as in the present case, where, after decree, it was no part of the mortgagor's interest to protect the incumbrance, the interests of the two are not identical.

3. Other cases dealing with the same point are Ramachandra Dhando v. Malkapa [1916] 40 Bom. 679 and Ghanshyam Das v. Raghu Singh A.I.R. 1931 Pat. 64. Is there any reason to suppose that a submortgagee's interest should form an exception to this rule? The learned Subordinate Judge who heard the first appeal has relied on the authority of a case in Rarichan v. Elambilakad A.I.R. 1923 Mad. 440 for holding that a submortgagee will be bound. The circumstances of that case which was decided by Ramesam, J., were very exceptional and the question in its general form did not arise. So far from holding, as the learned Subordinate Judge thinks, that a submortgage is bound by the decree between his submortgagee and the stranger, the learned Judge has expressly stated that the findings in the suit do not bind the submortgagee, and therefore the decision proceeded upon other considerations. There is I think very little difference between the position of a submortgagee and that of a transferee of the original mortgage: see Halsbury, Vol. 21, part 6, paras. 336 to 338, where the legal incidents of such an interest are set out. It seems clear to me that if a mortgagee is not bound by impleading his mortgagor, similarly the mortgagee of a mortgagee,. i.e., a submortgagee, is not bound by impleading his submortgagor. As has been remarked by the Bench in Sashi Bushan v. Gogan Chandar [1895] 22 Cal. 364 it may very well be that the interest of the submortgagee in the estate may be much greater than that left either in the mortgagor or in the mortgagee; nor need it always happen that the interests of the two latter are identical with those of the former.

4. A submortgagee's title does not how ever give the possessor of it a right to possession of the property, which forms the real contest in this case. It has been noted that the submortgagee obtained a decree under which in 1922 he purchased the property. Has he by so doing acquired a right to possession by virtue of this purchase, in spite of the decree against his submortgagor in O.S. No. 857? It has been suggested that he has such a right because to hold him divested of it by the decree in O.S. No. 857 would involve the position that while that decree is not res judicata against him, yet it has had the effect of depriving him of a right which he would otherwise enjoy. Can he ignore that decree both as regards its effect on the position of his mortgagor as well as on his own position? I think that the answer must be that his submortgagee's right alone is unaffected by the circumstance that he was not made a party. He is not entitled to possession as submortgagee, but as auction-purchaser under his own decree; and in so far as he can claim possession as auction-purchaser, that claim is derived from the owner of the equity of redemption, the judgment debtor in his mortgage suit. As has been held in Magan Lal v. Shakra Girdar [1898] 22 Bom. 945, and is, 1 think, indisputable, by a sale of the mortgaged property under a mortgage decree, the interests both of a mortgagor and mortgagee pass to the purchaser. I do not think that the application of the rule of res judicata will go so far as to preserve in the interests of the submortgagee the estate of his judgment-debtor, who was a party to the other suit and whom the decree in that suit divests of his interest in the property. Gases such as Shaik Abdulla Saiba v. Haji Abdulla [1880] 5 Bom. 8 and Trimbock Balkrishna v. Narayan Damoda [1884] 8 Bom. 481, which have held that what is sold in a mortgage suit is the interest of the mortgagor and the mortgagee as they stood at the time of the mortgage, refer I think, to alienations made or encumbrances subsequently created, and not to the displacement of the mortgagor's interest by a paramount title, which must he hold to relate back to a point of time before the mortgage itself.

5. My attention has been drawn to one case, Ramchandra Dhando v. Malkapa [1916] 40 Bom. 679, in which the circumstances were closely parallel. That was a suit to set aside a guardian's sale in which the mortgagee was not impleaded. After the suit, the mortgagee brought to sale and purchased the property. He attempted to get possession of it but was resisted by the ex-minor. After holding that the mortgagor did not represent the mortgagee's estate, the learned Judges refer to the circumstance of the subsequent purchase by the mortgagee, but I do not understand thorn to hold that, as purchaser, the mortgagee had bettered his position. The case, I think, was regarded from the point of view of the mortgagor's rights and not those of the auction-purchaser, because the learned Judges say that they do not understand how the plaintiff is in any worse position merely because in 1904 he altered his original position of mortgagee to that of auction-purchaser, and they add:

For, notwithstanding that alteration, the question would still be, not what was the plaintiff's position in 1904, but whether in 1898 the mortgagor possessed sufficient estate to represent his interest and bind his mortgagee.

6. So far as it goes, this case, I think, indicates that as auction-purchaser the submortgagee is not in a better position. I have already referred for another purpose to Bonomalli Nag v. Kaylashchandra [1879] 4 Cal. 692, which was another case in which the mortgagee became the purchaser at the auction sale. But here again it does not seem to have been argued that this made any difference, although the special question which arose in that case would seem to have made important the question of the right to possession of the property.

7. In Entholi Kishakkikandy Kanaran v. Vallatti Koylil Unnoli [1907] 30 Mad. 500 a mortgage suit was brought against a mortgagor who had sold his interest to a third party who was not impleaded. In the Court sale the property was bought by a person not the decree-holder, who sued to eject the mortgagor's assignee. It was held, following Hargulal Singh v. Govind Rai [1897] 19 All. 541, that all that the purchaser bought was the mortgagee's interest, and that he was not entitled to possession. It is true that the assignment was before the suit and that the principle of lis pendens would have applied to a conveyance of the mortgage during the suit. I doubt however whether that principle would apply to circumstances such as the present. Although the decree in O.S. No. 857 was later in date than the defendant 1's mortgage decree, it operated, I take it, as between the parties to the suit to avoid the sale of 1902 with effect from the date of that sale. Accordingly, no change in the title of defendant 1's submortgagor took place during his, mortgage suit. The judgment-debtor had lost his title long before, and that being so, I do not think that the auction-purchaser obtained anything more than the rights of the submortgagee. I can find no reason to differ from the view taken by the learned Subordinate Judge that the auction-purchaser had to take the risk of any infirmity in the judgment-debtor's title and that, in the circumstances, nothing passed from that source by the sale. But I differ from the learned Judge and agree with the learned District Munsif in holding that defendant 1's title as submortgagee is not affected by O.S. No. 857, so that it would not be correct to give a decree, as the lower appellate Court has done, declaring the plaintiff's title unless it be a qualified declaration. In point of fact, although the suit was treated as one for a declaration of title, the plaint asks only for a declaration of the right to possession and for an injunction, and I can see no objection to the grant of relief in this form. In part therefore I allow the appeal and modify the decree by declaring that the plaintiffs are "entitled to the possession of the properties" in place of "entitled to the properties." In other respects I confirm the decree and dismiss the appeal. As the appellant has substantially failed, he will pay the costs of second appeal.