1. This is a plaintiffs appeal. It was a suit for a declaration; of title that the plaintiff was a mortgagee in possession of plot No. 118 and that he was not a tenant of the defendants and he also prayed for redemption of two simple mortgages. It appears that the original owners were Dharam Dut and Aman Dat whose heirs were defendants Nos. 10 to 16. A simple mortgage was executed by Dharam Dut and Aman Dut in February 1876 in favour of one Debi Dayal whose heirs were represented by defendants Nos. 1 to 8. A second mortgage similar-in all respects was executed on the 23th of September 1876. Finally Dharam Ddt and Aman Dut executed in favour of one Pabaru Sunar a usufructuary mortgage on the 22nd of May 1879. The grandson of Pabaru Sunar, Ram Nath, who was really a pro from a defendant 3rd party sold his rights on the 7th of August 1909 to Ram Baran Chaube and Hazari Chaube the present plaintiffs, and gave possession. On the 17th of April 1888 the heirs of Debi Dayal, the prior mortgagees, obtained a decree in respect of their two simple mortgages hut did not in their suit make the usufructuary mortgagee, the predecessor of the plaintiff, party. Having obtained a decree for sale the heirs of Debi Dayal whom we shall henceforward call the defendants themselves purchased the mortgaged property. In 1921 they sued in the Revenue Court to eject the present plaintiff describing him as a tenant and on the 4th of March 1921 the plaintiff objected that he was really a mortgagee and he was referred by the Revenue Court to the Civil Courts. He duly went to the Civil Court and the present proceeding is the result. The defendants pleaded that they, not in their capacity as prior mortgagees but by right of their purchase of the equity of redemption at the auction-sale, were entitled to redeem the plaintiff. They pleaded that they had obtained decrees which extinguished their own mortgages and* therefore, no suit by the plaintiff for redemption was possible.
3. The Trial Court, the Munsif, (Babu Girish Chander) on the 16th of 'February 1922 granted a preliminary decree for redemption to the plaintiff on the basis that all accounts should be taken as to what was due to the defendants on their mortgages at the date of the acution-purchase. Subsequent to the passing of this preliminary decree Babu Girish Chander was transferred to another Court to act as Subordinate Judge in the same district. On the 16th of February 1922 he had written the judgment in the case but his successor, Babu Raghu Nath Prasad, on the same day, the 16th of February 1922, pronounced it The next step was an application by the plaintiff on the 18th of February 1922 to the Court of the Subordinate Judge which was then presided over by Babu Girish Chander to amend his judgment so that the decree should read that the account should be. taken up to the date of the decree obtained by the defendants in accordance with the Privy Council ruling to that effect. It would appear that on the 4th of March 1922 the defendants appealed from the original preliminary decree to the Court of the District Judge. On the same day Babu Girish Chander allowed the application for review and passed a fresh decree. It is clear that though these two proceedings took place on the same date the appeal of the defendants was in fact filed before the order allowing the review was passed for there is a reference to it in the order granting the review. On the 22nd April 1922 the defendants also appealed against the order. allowing the amendment. The two appeals were heard together by the District Judge. He dismissed the plain tiff's suit for redemption holding that the defendants' mortgages had. ceased to exist as a consequence, of the decrees obtained by them and be held that the defendants were entitled to redeem the plaintiff. The plaintiff at the hearing, of the appeal objected unsuccessfully that the appeal should have been against the preliminary decree as passed by the Subordinate Judge Babu Girish Chauder an appeal against which was barred by time. The District Judge further held the order of Babu Girish Chander allowing the review to be without jurisdiction and the District Judge gave to the defendants a decree, allowing them to redeem the plaintiffs mortgage on payment of Rs. 85.
4. The plaintiffs have now applied to this Court in Revision No. 65 of 1923 against the order of the District Judge by which he held that Babu Girish Chander had no jurisdiction and in the S.A. No. 648 of 1923 against the order by which he reversed the decree of the Munsif and gave the defendants right to redeem.
5. It will be convenient to dispose of both matters in the same order.
6. As to the Revision No. 65 of 1923, it is again contended before us that the appeal of the defendants should have been difected against the preliminary decree as amended by Babu Girish Chander after he had ceased to be Munsif. To establish this contention it is necessary for the plaintiff to contend, and it has been contended with much verbal play on the wording of Rulers 1 and 2 of Order XLVII, that the plaintiff was right in making to Babu Girish Chander his application for review and that Babu Girish Chander had power to entertain it. It is not necessary to follow Counsel for the applicant in revision in the ramifications of his argument on this point. It is clear on the face of Ruler I that an application for review must in all the cases in which it is allowed at all be made to the Court which passed the decree (or made the order). If this Ruler stood alone, then all such applications could be made to the Court which passed the decree whether the Judge presiding in that Court was the Judge who passed the decree or was a successor of that Judge. But Ruler 1 is followed by Ruler 2 which adds a further condition that except in certain cases of which the case before us is not one, the application must be made "only to the Judge who passed the decree." In the cases excepted the application must be made to the Judge who is presiding at the time in "the Court which passed the decree" and may be made to him whether he is the same Judge, who passed, the decree or the successor of such Judge, such cases being excepted from Ruler 2 and only controlled by Ruler 1. In other cases than those excepted (and the present case is not one of those excepted) Ruler 2 declares that the application can only be made to the Judge who is not only as required by Ruler 1 sitting as the same Court but is further the individual Judge who passed the decree.
7. In other words Ruler 2 imposes in certain cases, of which this is one, a second condition in addition to that imposed by Ruler 1. In the present case owing to transfer of Babu Girish Chander there was no Judge who fulfilled both conditions. Babu Girish Chander was not sitting as the same "Court" and his successor Babu Raghunath Prasad was not the same "Judge." The plaintiff should, therefore, have proceeded to his remedy by way of appeal.
8. The fact that under certain circumstances there may be, through no fault or act of the intending applicant, no Judge at all to whom application for review can be made as in the present case or where the individual Judge has died, would at first sight suggest a different interpretation of the section. This difficulty was incidsntly noticed in Maharajah Moheshur Sing v. Bengal Government 7 M.I.A. 283 at p. 301 : 3 W.R.P. C. 45 : 1 Suth. P.C.J. 325 : 1 Bar. P.C.J. 645 : 19 E.R. 316.
9. But, in our opinion, the terms of Rulers 1 and 2 and particularly the nature of the cases included and accepted by particular mention in those rules puts it beyond doubt that the Legislature carefully considered the cases for which it was providing and that the consideration was not absent from its mind that in certain cases there might be no Judge at all to whom application could be made. Be that however as it may be, and though the rules might have been more clearly worded, the effect of them is beyond doubt.
10. This is the only argument that was -seriously pressed before us in this connection and there is clearly no force in it.
11. We hold, therefore, that the learned Additional District Judge was clearly right in holding that Babu Girish Chander had no jurisdiction to allow the review.
12. The application in revision is dismissed. with costs including fees on the higher scale.
13. Next as to the section a. no, 648 of 1923. It is urged that the prior mortgagee filed his suits and got his decrees without making the plaintiff puisne-mortgagee a party to his suit, and then himself purchased deliberately with the intention of depriving the puisne-mortgagee of his right to redeem. This may be so, but how does it help the plaintiff? If, to mark our disapproval, the plaintiff were given the right to redeem which he claims, that would he gain thereby? The prior mortgagee has by his purchase of the mortgagor's rights secured the right to redeem the mortgage of the plaintiff, and if the plaintiff redeemed his mortgages, he would be able immediately in turn to redeem the plaintiff's mortgage; The case is in all essentials indistinguishable from that reported as Paasram sing. y. Pandohi 67 Ind. Cas. 533 : 20 A.L.J 491 : (1922) A.I.R. (A) 153 : 44 A. 462 : 4 U.P.L.R. (A) 145. We find ourselves in complete agreement with, that decision and the reasoning to be found therein. Home attempt was made by Counsel for the appellant to distinguish that case on, two grounds, firstly, that in that case the prior mortgagee who had become the owner of the equity of redemption had made a deposit under Section 83 of the Transfer of Property Act; and, secondly, that he had in his written statement put forward his claim' to redeem., Neither argument has any force in face of the written statement in this case, in para. 10 of which the defendant declared himself ready to pay and in para. 9 of which he asserted his. right to redeem. The case was opened to us with the suggestion that it had been held that, a prior mortgagee has a right to redeem. Of course neither in the decision in Parasram Sing v. Pandohi 67 Ind. Cas. 533 : 20 A.L.J 491 : (1922) A.I.R. (A) 153 : 44 A. 462 : 4 U.P.L.R. (A) 145. was this really held, nor do we hold it in this case, but merely that where the mortgagor's equity of redemption the opens to have vested by purchase in a person who, is also a prior, mortgagee and that person as owner of the equity of redemption wants to redeem a puisne-mortgage while at the same time the puisne-mortgagee wants to redeem the prior mortgage, the claim of the former not as prior mortgagee but as owner of the equity of redemption will be preferred. There is no more force in the appeal than in the revision and we dismiss, it accordingly with costs including fees on the higher scale.