Sir W. Comer Petheram, C.J:— I am of opinion, after reading the judgments of the two learned Judges of the Division Bench, and looking into the facts of the case, that on the part of one, at all events, of those learned Judges, there was some misapprehension, as to the real facts, and that, had it not been for that misapprehension, no difference of opinion could have arisen. Under these circumstances, I am of opinion that, the proper mode of dealing with the matter is to alter the Munsif's order by inserting the words “in that property the interest of the plaintiff as second mortgagee only to be sold” after the words “land No. III be exempted from the hypothecation lien.” The order as amended will be returned to the first Court for [108] execution. As regard costs, the Munsif's order will stand, but in reference to the proceedings subsequent to that order, there will be no order as to costs.
Oldfield, J.:— I desire only to add that the suit was brought by the respondent against the first mortgagee of three bighas of land and in possession thereof, that mortgage being usufructuary; and I understood, and still understand, that the object of the suit, which was brought by a second mortgagee holding a second mortgage on the same property was to bring the land to sale so as to oust the first mortgagee and get rid of his mortgage without satisfying it. This, I am of opinion, he cannot do. I was therefore in favour of affirming the decision of the first Court, dismissing the suit. The second mortgagee has a right to sell such interest as be possesses as second mortgagee, and in this view I see no objection to the form of the decree proposed by the learned Chief Justice.
Straight, J.:— I have consented to this form of decree, because it virtually represents the relief to which the plaintiff is entitled, namely, to bring to sale the property charged to him under his mortgage of 1874, subject to the rights existing in favour of the first mortgagee of 1866. In other words, a purchaser at a sale in execution of this decree will have no further right than a right to take the property subject to the charge of the first mortgagee, that is, to the first mortgagee's right to possession of the property included in his instrument, and his other rights under that instrument, so long as it enures.
Brodhurst, J.:— I agree in the form of decree proposed by the learned Chief Justice.
Tyrrell, J.:— I also agree.