Strachey, C.J:— The only question in this appeal is whether the Court below has rightly made the plaintiff's decree conditional on the payment by him to the respondents of the amount due under their decree of the 30th September, 1835. The plaintiff sued on a mortgage of the 5th June, 1885. The respondents were prior mortgagees under a mortgage of 1882. At the time when the mortgage to the plaintiff was executed a suit on the respondents' mortgage was pending. The respondents obtained a decree on their prior mortgage on the 30th September, 1885. In paragraph 8 of the plaint in the present suit for sale the plaintiff states that the respondents “are impleaded as defendants on account of their decree of the 30th September, 1885, and that the entire amount of the said decree was satisfied without anything remaining due, but nevertheless they say their debt is still due; the plaintiff therefore is willing to pay the portion of their [245] demand found in the Court's opinion to be still remaining due.” The respondents in their written statement denied that the amount due to them had been fully satisfied, and contended that according to a correct account Rs. 29,000 odd was still due to them under their decree, and that the claim was barred by s. 244 of the Code of Civil Procedure. The issues framed by the Court below as between the plaintiff and the respondents were issues 10 and 13. Issue 10 was whether the whole money due to the defendants 2 and 7 has been satisfied, or a sum of Rs. 29,534 is still due?” Issue 13 was “whether the suit as against these defendants is barred by s. 244 of the Code?” On these points the Court below held that in fact the whole amount due under the decree had been paid, but that the plea which the plaintiff raised as to such payment and as to the incorrectness of the defendants' accounts was barred by s. 244. The Court accordingly made the plaintiff's decree subject to his paying to these two defendants the amount of their decree.
Now whether this view is correct depends on first, whether the plaintiff was a representative of a party to the decree of the 30th September, 1885, within the meaning of s. 244; and, secondly, whether he is attempting to raise in this suit any question which under s. 244 can only be determined by order of the Court executing that decree and must not be raised by separate suit.
As to the first of these questions, the plaintiff took his mortgage of the 5th June, 1885, during the pendency of the suit in which the decree of the 30th September was passed. He therefore took it subject to the decree, and the decree was binding on him so far as the property comprised in his mortgage was concerned. In the case of Madho Das v. Ramji Patak, an opinion was expressed that a purchaser pendente lite from a defendant-mortgagor should be treated as a representative of the defendant in execution of decree within the meaning of s. 244, the reason being that such a purchaser is bound by the decree and should therefore be allowed to make any objection in the execution department which the parties to the decree or any one else bound by it would be competent to make. And it does [246] seem reasonable that no distinction should be made so far as the competency to make objections in execution is concerned between one person who is bound by the decree and another. A purchaser from the defendant-mortgagor pendente lite is just as much bound by the decree as a purchaser from the judgment-debtor after the decree, and I can see no reason why he should be in an inferior position so far as s. 244 is concerned. If that is a correct view as regards a purchaser pendente lite in a suit on a mortgage, I think that it must be equally true of a mortgagee who takes a mortgage during the pendency of such a suit. The remarks in the case of Madho Das v. Ramji Patak, to which I have referred, were no doubt made obiter. The decree against the judgment-debtor was a simple money decree, creating no charge on specific property, to which of course different considerations apply. I think, however, that the observations are sound and reasonable, and that a mortgagee taking pendente lite, like the present plaintiff, ought to be regarded as a representative of the mortgagor-defendant in the sense that, being bound by the decree afterwards passed, he is competent, under s. 244 of the Code, to raise in the execution of that decree any of the questions mentioned in that section.
The only remaining question is whether such a point is raised in the present suit and ought to have been raised before the Court executing the decree of the 30th September, 1885. The question raised—and the only question raided in the present suit—is whether that decree has been fully satisfied or not. If it has been fully satisfied, then admittedly the present respondents cannot stand in the plaintiff's way. If it has not been fully satisfied, then the plaintiff could only get a decree in the present suit conditional on his payment of whatever is due under that decree. Under cl. (c) of s. 244, that question being one of the discharge or satisfaction of the decree, could only have been determined by order of the Court executing the decree, and therefore could not be determined by a separate suit. Proceedings in execution of that decree were taken from time to time, and the present plaintiff could then have raised precisely the contentions which he raises now as to the manner in which under the decrees the proceeds of the property sold should have been [247] appropriated. I do not say that the plaintiff cannot even now raise these contentions before the Court executing the decree. We do not now decide any question as to whether that decree has or has not been: satisfied. All that we decide is that the plaintiff cannot, in the present suit, raise the contention of its being satisfied, and of the incorrectness of the defendants' account which be has sought to raise. The result is that the decision of the Court below was right as regards these respondents, and that the appeal of the plaintiff as regards them must be dismissed with costs. We extend the time for payment of the sum of Rs. 29,534 until the 9th August of this year.
Banerji, J.:— I also would dismiss the appeal. The question raised between the parties to this appeal was whether or not the amount of the decree obtained by the respondents on the 30th September, 1885, on their prior mortgage of the 26th April, 1882, has been discharged. A further question arises whether the above question can be determined in this suit by reason of the provisions of s. 244 of the Code of Civil Procedure. The application of that section depends on first, whether the appellant is a representative of a party to the suit within the meaning of that section; and, secondly, whether the question now raised is one of the questions which can he determined by a Court executing the decree under s. 244. That the question raised in this suit is a question on which the application for execution of the respondents can be opposed admits of no doubt. The appellant alleges that if a proper account be taken of payments made in respect of the decree of the 30th September, 1885, in accordance with the terms of that decree nothing is due upon the decree. That is clearly a question relating to the discharge or satisfaction of the decree, and can be determined under s. 244 of the Code, provided that the appellant fulfils the condition of being a representative of a party within the meaning of that section. I agree in holding that being a transferee pendente lite, and being thus a person who is bound by the decree, he must be deemed to be the representative of the judgment-debtor to the decree, namely, the mortgagor. This was the view held in she case of Madho Das v. Ramji Patak and to that view I still adhere. The [248] question, therefore, of the discharge or otherwise of the respondent's mortgage is not a question which could be determined in this suit. This is sufficient for the disposal of the appeal, and it is not necessary to decide whether or not, as a matter of fact, the amount of the respondent's mortgage has been fully satisfied. I concur in the order proposed by the learned Chief Justice.
Appeal dismissed.
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