Meredith, J.:— This appeal is by the decree-holder against an order under section 47 of the Code of Civil Procedure allowing an objection to the sale of two villages in execution of a mortgage decree.

Before turning to the legal questions, which are of some difficulty, it is necessary to set out clearly all the relevant facts. In the year 1925 one Tej Pratap Narain Singh mortgaged two villages, Dubauli and Sundar, with other properties to the appellant Raj Narain Sinha. In the year 1927 he gave a further simple mortgage to the appellant of two other villages Chapsia and Hafizpur and other properties. In between the two, in 1926, Tej Pratap Narain Singh mortgaged all four villages and other properties to the respondent objector. Thus, in respect of Dubauli and Sundar the appellant was a prior mortgagee and the objector a puisne mortgagee, whereas in respect of Chapsia and Hafizpur the appellant is the puisne mortgagee and the objector the prior mortgagee.

The objector brought a suit upon his mortgage, obtained a decree, and some time between 1930 and 1932 in execution thereof he purchased the properties mortgaged to him and obtained possession, thus combining in himself the rights of the mortgagor, namely, the right to possession and the equity of redemption, and the rights of the mortgagee. In his suit he did not implead the present appellant who was thus not bound in any way by the decree and sale.

Subsequently the appellant brought a suit (mortgage suit no. 32 of 1933) upon both his mortgages, and in this suit he impleaded the objector, but only as a subsequent transferee of the interest of the mortgagor in villages Dubauli and Sundar. In his plaint he made no reference to the objector's prior mortgage of Chapsia and Hafizpur. He neither challenged his priority as regards these two villages nor offered to redeem the prior mortgage. The objector, who was defendant no. 5, asserted his priority, but did not apparently ask for an order of the Court that he should be redeemed before Chapsia and Hafizpur could be sold by the puisne mortgagee.

The court contented itself with recording a finding that the defendant no. 5's mortgage was subsequent to the first, bond and prior to the second bond of the plaintiff. It then passed an ordinary mortgage decree which contained no special direction with regard to the objector's priority.

The appellant executed his decree, and first sold up Dubauli and Sundar. For the unrealised balance of his decree he then wanted to sell Chapsia and Hafizpur, whereupon this objection was made, and the execution court has simply allowed it holding that the decree-holder cannot sell these villages.

It is necessary to set out one further fact, namely, that both parties agree that the right of the objector to enforce his prior mortgage against the subsequent mortgagee decree-holder had by the time of the objection become barred by limitation.

The points made for the appellant are that he can sell these villages because he was not a party to the objector's decree. His own decree does not specify that the sale is to be subject to the objector's prior mortgage, and the execution court cannot go behind the decree. Even, however, if it be held that the sale must be subject to the prior mortgage that would be meaningless since the prior mortgage can no longer be enforced against him. He further contends that the objector having been party in his suit is bound by res judicata, and lastly it is argued that in any event he cannot be compelled to redeem the entire mortgage of the objector since Chapsia and Hafizpur only represent portion of the mortgaged property. However, the appellant is prepared to release these villages provided the respondent pays the outstanding balance of his mortgage.

The respondent attacks all these propositions, and contends that the appellant can only sell Chapsia and Hafizpur after redeeming his mortgage.

The shield.—That the prior mortgagee is entitled to use his mortgage as a shield cannot be doubted. It is expressly provided by section 101 of the Transfer of Property Act that the mortgagee may purchase the rights of the mortgagor without causing the mortgage to be merged as between himself and any subsequent mortgagee, and the subsequent mortgagee cannot sell the property “without redeeming the prior mortgage or charge, or otherwise than subject thereto”.

This position is also implicit in the terms of Order XXXIV, rule 12, Code of Civil Procedure. Rule 12 says:

“Where any property the sale of which is directed under this Order is subject to a prior mortgage, the Court may, with the consent of the prior mortgagee, direct that the property be sold free from the same, giving to such prior mortgagee the same interest in the proceeds of the sale as he had in the property sold.”

The clear implication is that the property cannot be sold free from the encumbrance without the consent of the prior mortgagee.

Failure to implead.—As for authority, it is ample, not only on the use of the shield, but also upon the point that the failure of the prior mortgagee to implead the puisne mortgagee in his suit makes no difference. He can still use his mortgage as a shield. In Sukhi v. Ghulam Safdar Khan the Privy Council laid down that where a puisne mortgagee has not been made a party to a suit in which a prior mortgagee has obtained a decree, the puisne mortgagee is entitled in a subsequent suit to occupy the position which he would have done had he been a party. Where the prior mortgagee, having obtained a decree under Order XXXIV, is sued by a puisne mortgagee whom he has not joined in the former suit, he is entitled………………… to use his prior mortgage as a shield, and to have the discharge of his decree made a condition to a sale decree in favour of the puisne mortgagee.

In Mahadeo Rai v. Adya Prasad a Bench of this Court laid down that where a prior mortgagee purchased the mortgagor's interest in the property and obtained possession and subsequently the puisne mortgagee brought a suit on the foot of his mortgage for sale of his property, impleading, the prior mortgagee, the subsequent mortgagee was entitled to get the property sold subject to the prior mortgage. But in such a case the purchaser in execution of the decree would not be entitled to dispossess the prior mortgagee without redeeming his mortgage.

In Musammat Sheoratan Koer v. Kamta Prasad* Bench of this Court in somewhat similar circumstances held that the puisne mortgagee must redeem the prior mortgage before he could bring the property to sale.

Limitation.—It is further quite clear that limitation makes no difference to the right of the prior mortgagee to use his mortgage shield. Section 3 of the Limitation Act bars only the remedy, but does not extinguish the right, and thus limitation can prevent a prior mortgage being used for an attack but cannot prevent its use as a shield. In the Full Bench case of the Allahabad High Court. Ram Sanehi Lal v. Janki Prasad Sulaiman, J. in his judgment came to construe the Privy Council case of Sukhi v. Ghulam Safdar Khan, and he said (at page 1045). “The question of allowing a prior mortgagee, whose mortgage had long since become barred by time but who was in possession of the property under a decree obtained without impleading the subsequent mortgagee, to set up his prior mortgage as a shield, even though the limitation for the mortgage had run out, was prominently before their Lordships; and their Lordships allowed Ghulam Safdar to recover the amount due on his mortgage of 1883. This, to my mind, is a clear authority for the proposition that a prior mortgagee, if he is in possession, can set up in defence a prior mortgage as a shield, although in his suit he had not impleaded the subsequent mortgagee, and even though a fresh suit to enforce it would not be barred by time.”

There are many other rulings on the point of limitation, for example, Ram Sarup v. Ram Lal, where it was observed that in the case of a mortgagee who acquires the rights of the mortgagor he can use his mortgage as a shield so long as he retains the rights of the mortgagor and is not affected by any question of limitation.

Pingali Venkataramana Reddi v. Katigari Rangiah Chetti is a Madras case in which it was held that the fact that the prior mortgage would have been barred by limitation does not prevent a purchaser in execution of a mortgage decree who has obtained possession from holding up the prior mortgage as a shield against a subsequent encumbrancer. Karuppan Chettiar v. Venkata Perumal is another Madras case. The Court held that the purchaser in court auction of the mortgage right is entitled to set that up as a shield against the puisne mortgagee who was not made a party to the suit on the mortgage, and this right to set up the mortgage as a, shield is not defeated by the 12 years' rule of limitation.

The same view has been adopted by the Lahore High Court, see Nizamuddin v. Ramsukh Das where it was held that the prior mortgagee could claim to retain possession of the mortgaged property until all his claims were satisfied, although he might have lost his right by lapse of time. “Even if”, said the learned Judges, “a claim based on certain facts is barred by efflux of time a defence based on those facts is not so barred”.

Res judicata.—I turn now to the question of res judicata. This has really been settled by the Privy Council in Radha Kishun v. Khurshed Hussain. Second mortgagees sued for a sale decree under the Transfer of Property Act, 1882, joining as a party the first mortgagee, who did not appear. A decree was made, and the property was bought by the second mortgagees. The first mortgagee afterwards sued for a sale decree. It did not appear (as in the present case) that in the former suit the second mortgagees had attacked the first mortgage or sought to postpone it to their own. It was held that the decree in the former suit was not res judicata under section 11 of the Code of Civil Procedure, 1908, against the first mortgagee, and that he was entitled to a sale decree.

In Gadadhar Prasad v. Mosammat Auladin a Bench of the Calcutta High Court held that where a prior mortgagee is made a party to a suit on a subsequent mortgage and allows an ex parte decree to be passed against him, he is not precluded from having his right as a prior mortgagee declared under Order XXXIV, rule 12, Code of Civil Procedure, 1908. It was contended that the prior mortgagee in his application was asking to have that decree to some extent set aside which could not be done in review. The learned Judges said that contention could prevail. There was nothing in Order XXXIV, rule 12, to prevent its application to a party in the suit. No issue was raised in the suit by the plaintiff as to the interest of the defendant and the matter was not brought by him before the Court for adjudication. They considered that the matter was one which in fact arose under section 47, Code of Civil Procedure, being a question between the parties and relating to execution. See also Radha Kishun v. Khurshed Hussain.

In Akhil Bandhu Guha v. Srimati Suradhani Debya Choudhrani it was held that where a puisne mortgagee impleads a prior mortgagee and does not offer to redeem him, the prior mortgagee is not affected by the decree, and the sale, if held, will be subject to his mortgage. It was held further that in such a suit the prior mortgagee even if impleaded need not assert his rights as a prior mortgagee on the ground that the decree would be construed as res judicata against him.

Gopal Singh v. Ladha Mal is a case very much in point. The purchaser at the execution sale upon the prior mortgagee's decree was impleaded in the puisne mortgagee's suit. The validity of the first mortgage was not disputed in the suit, and the purchaser did not set up a claim that he was entitled to a charge on the property. The decree consequently contained no reference to the charge. Subsequently the purchaser put forward his claim. It was held that he stood in the shoes of the prior mortgagee for the purpose of Order XXXIV, rule 12, and the property could not be sold otherwise than subject to his claim. A plea of res judicata was put forward expressly and disallowed. It was held that the validity of the mortgage not having been disputed in the suit it was not necessary to set up the prior claim in the suit, and the mere fact that the decree did not specify the prior charge could not affect the prior mortgagee's rights.

There is a Full Bench Case of the Allahabad High Court on the point, namely, Ram Dhan v. Chunni Kunwari. A third mortgagee who had discharged a first mortgagee's decree was impleaded in a suit by the second mortgagee. The third mortgagee did not appear and set up a claim of priority, and the suit was decreed without any provision as to whether the sale was to be subject to or free from any prior encumbrance. The third mortgagee then brought a suit for a declaration of her priority, and it was held that the suit was not barred by res judicata by reason of the ex parte decree passed in the second mortgagee's suit, because the validity of the prior mortgage decree was not in any way disputed by the second mortgagee in his suit, and, therefore, the matter was not in issue at all, and there was no occasion for the third mortgagee to set up her rights. She was a necessary party in her capacity as a subsequent transferee, but not a necessary party in her capacity as a prior mortgagee. As she was professedly impleaded as a subsequent transferee there could be no reason to require that she must necessarily have appeared in Court and set up rights under the prior mortgage which were not disputed by the plaintiff. If the decree had directed that the property was to be sold free from any prior encumbrances the result might have been different, but there were no such directions.

There is also an authority of our own High Court, Lachmi Narain Marwan v. Chaudhry Bhagat Singh. In that case it was laid down that if the prior mortgagee is made a party in the suit by the subsequent mortgagee, the purpose of making him a party should be clearly stated, but if no purpose is given in the plaint or provided for in the decree, the prior mortgagee will not be affected by the judgment in the suit. Unless relief is claimed against the prior mortgagee as such the latter need not set up his prior mortgage, and his subsequent suit on the prior mortgage will not be barred under section 11, Code of Civil Procedure, particularly when no issue is raised and the question as to the prior mortgage is expressly left undecided.

It is quite clear on the authority of these cases that no question of res judicata arises in the present case. Even if the prior mortgagee had set up no priority at all, still there would be no question of res judicata, simply because his priority was never challenged. The failure to defend something which has never been attacked can never form the basis for a plea of res judicata. In fact, however, though not attacked in this case the prior mortgagee did assert his priority, and the Court found in his favour. True, that priority was not mentioned in the decree, but there was, in my opinion, no defect in the decree on this account. There is no provision in Order XXXIV requiring any such specification in the decree. Order XXXIV, rule 4, sub-rule (4), provides that the preliminary decree shall provide for the adjudication of the rights and liabilities of subsequent mortgagees impleaded in the suit, but there is no such provision regarding prior mortgagees, and the reason is obvious, namely, that under Order XXXIV, rule 1 it is no longer necessary to implead the prior mortgagee at all. If he is not impleaded, obviously the decree cannot specify his rights and will be an ordinary mortgage decree for sale. Nevertheless the rights are there and can be subsequently set up, either by a separate suit if the prior mortgagee had not been impleaded or by an application under section 47 if the prior mortgagee had been impleaded, but the plaintiff had not challenged his priority or offered to redeem. The position is that, unless the puisne mortgagee in his suit challenges the priority or offers to redeem, the prior mortgagee even though impleaded need not set up his rights, knowing that not having been attacked he can still rely upon them, as there is neither necessity nor provision for setting out his priority in the decree. As I have already indicated, in the present case the prior mortgagee was impleaded not as such but subsequent transferee, and in the plaint there was neither challenge to the prior mortgage nor offer to redeem it.

From the above discussion too it will be apparent that there is no question of the execution Court going behind the decree. The decree, though it does not specify it, is no challenge to the priority. That this is so has been recognised in some of the cases to which I have already referred, and they also make it clear that the matter can be raised at the execution stage though not raised in the suit, for example. Gadadhar Prasad v. Musammat Auladin, where it was held that the matter fell under section 47, Code of Civil Procedure, and could be raised in execution and Gopal Singh v. Ladha Mal where the prior mortgagee also raised the matter at the execution stage, despite the fact that though impleaded in the suit the decree had not specified his prior mortgage.

Ram Narain Sahoo v. Bandi Prasad is another case where the prior mortgagee successfully raised the matter at the execution stage, and got himself restored to possession.

It appears then that there is no question of any error in the form of the decree, and no question of going behind the decree. The prior charge is not specified in the decree, not because it embodies any decision negativing the priority, but simply because Order XXXIV has no provision for the purpose. The prior mortgagee is not a necessary party, and even if impleaded no adjudication is necessary upon his priority, unless it has been challenged, and the decree in the ordinary form does not affect the prior rights. Of course, if the prior mortgagee asks for redemption, or the puisne mortgagee offers to redeem that must be provided for. It is clear that there is no substance in the argument that if the prior mortgagee wanted to raise an objection he should have done so in the suit and asked for a provision in the decree. There is no necessity for him to do so, unless his priority has been challenged and then his remedy is to ask for redemption.

We come now to this position, that the prior mortgagee is entitled, as he has done, to come in at the execution stage under section 47 and insist upon his rights under section 101 of the Transfer of Property Act and Order XXXIV, rule 12, Code of Civil Procedure. At the same time the puisne mortgagee decree-holder is also entitled to enforce his rights under his decree, so far as that can be done consistently with allowing the prior mortgagee to use his shield. The ordinary way of reconciling these positions is to allow the puisne mortgagee to sell subject to the prior mortgage, unless he prefers to redeem it. This follows from the fact that he need not implead the prior mortgagee at all, and that, as the Privy Council has said, the prior mortgagee not having impleaded the puisne mortgagee in this suit as he ought to have done, the puisne mortgagee is still entitled to the rights which he would have had if he had been impleaded; and those rights included the right to redeem the prior mortgage and to claim marshalling. If the puisne mortgagee elects to exercise his right of redemption the prior mortgagee is, of course, deprived of the benefit of any bargain he may have obtained in purchasing the villages in execution; but that is the fault of the prior mortgagee. He ought to have impleaded the puisne mortgagee in his suit. Both mortgages were registered, and that, in my opinion, must be taken to be sufficient notice. There are decisions to the contrary, but I think the decision of the Privy Council in Syed Mohammad Ibrahim Hussain Khan v. Ambika Prasad Singh is an authority on the point. In that case at page 82 their Lordships say: “If Gajadher Mahto had taken the ordinary precaution of inspecting the register of the district………………before he took his mortgage of January 7, 1888, he would have found that the 5 annas 4 pies share…………………had been charged by the zerpeshgi deed of November 20, 1874 ………………’……. If Gajadher Mahto had before bringing his suit of September 16, 1888, and in order to ascertain who would be under section 85 of the Transfer of Property Act, 1882, the necessary parties to his suit, taken the ordinary precaution of searching that register, he would also have found that the 5 annas 4 pies share……,…………was included in Mosammat Alfan's mortgage of February 17, 1888”.

Thus, the use of the shield does not extend to depriving the puisne mortgagee, the present appellant, of his right to redeem.

Next let us consider the position if he does not elect to redeem. As I have said, on the one hand he cannot be deprived of his right to sell which his decree gives him, and, on the other hand, the objector cannot be deprived of his use of the shield. The ordinary method of reconciliation, namely, allowing him to sell subject to the prior mortgage, is not available in a case like the present, because owing to the prior mortgage being time barred this would be no real protection to the prior mortgagee, and would be in effect to deprive the prior mortgagee of his shield altogether. It is conceded that no relief can now be obtained upon the prior mortgage. True, the prior mortgage has merged in the decree, and there is authority in support of the view that when that happens a fresh period of limitation will start, from the date of the decree, see Babu Lal Ray v. Bindhyachal Rai. See also Shib Lal v. Munni Lal and Alam Ali v. Beni Charan. No such question, however, arises in the present case, simply because the puisne mortgagee was not party to the decree. Any rights against him arise not under the decree but upon the mortgage, and the right to enforce the mortgage, as such is barred by limitation.

Then how is the shield to be afforded in such a case? In my opinion, the answer appears from section 101 of the Transfer of Property Act and Order XXXIV, rule 12, Code of Civil Procedure, when carefully read together. Section 101 says in effect that the puisne mortgagee may either redeem the prior mortgage, or sell subject thereto. It might be argued from this that when selling subject thereto affords no shield the puisne mortgagee must fall back on the other alternative, and so his only course is to redeem. But that would be depriving him of his undoubted right to sell. The way of escape from this position without doing injustice to either party is to be found in Order XXXIV, rule 12. Under that rule it is open to the prior mortgagee to say to the Court “As I cannot object to the sale altogether and as a sale subject to my mortgage is no good to me I consent to the sale free from my encumbrance upon the terms of Order XXXIV, rule 12.” Under rule 12 it is for the Court to decide in such a case whether to sell free from the encumbrance, but it would in my opinion, be the clear duty of the court upon the objector's request to order a sale in this manner; because it is the only manner in which the rights of both parties, the right to the sale and the right to the shield, can be given effect to and the equities between them can be adjusted. The Court then, when the objector expresses his preference, will direct that the property be sold free from the prior encumbrance, but giving the prior mortgagee the same interest in the proceeds of the sale as he had in the property sold, and in this way the prior, mortgagee, though he loses the villages, gets all that is due to him, namely, the full satisfaction of his mortgage, and the puisne mortgagee gets all that is really due to him, namely, any surplus sale proceeds after the satisfaction of the prior mortgage.

It remains to dispose of one point. The prior mortgagee purchased in satisfaction of his decree not only the two villages but other properties besides. It would obviously be inequitable that he should now claim the full amount of his mortgage dues and at the same time retain these other properties. In this connection it must be remembered that the puisne mortgagee is entitled to the rights which he would have been able to exercise had he been impleaded in the prior mortgagee's suit. Amongst them is included the right to claim marshalling, which would have meant that the properties other than these villages would have to be sold first in satisfaction of the mortgage. The equitable course would be to allow the puisne mortgagee to redeem by paying off an amount of the mortgage dues bearing the same proportion to the whole as the value of his two villages did to the value of the whole mortgaged properties at the time of the mortgage. Let us suppose the mortgaged properties consisted of (a) Dubauli and Sundar, (b) Chapsia and Hafizpur, and (c) other properties and that at the time of the mortgage (a), (b) and (c) were equal in value and each represented one-third of the entire mortgaged properties, (a) has been sold and purchased by the puisne mortgagee, as in regard to (a) he was a prior mortgagee (c) is not the subject of the other mortgages, and has become the property of the prior mortgagee and will remain with him, and the mortgage has been extinguished to that extent. The puisne mortgagee now wants to sell (b). If he elects to redeem he must at least be able to do so in such a case by paying off the outstanding balance of the mortgage dues, that is to say, the residue after setting off such proportion of the dues as corresponds to the value of (c), which is, in the hypothetical case we are imagining, by paying off two-thirds and setting off one-third. Clearly that is the least he is entitled to, and it does not amount to partial redemption, so he is entitled to it whether the prior mortgagee has or has, not broken the integrity of the mortgage, so as to give the puisne mortgagee the benefit of the exception provided for in the last clause of section 60 of the. Transfer of Property Act.

Another hypothetical example will clarify what I mean. Suppose the interest of a mortgagor is transferred in equal proportions to A, B and C, A taking ⅓(X), B1/3(Y), and C1/3(Z). The mortgagee then acquires in satisfaction of his mortgage the share of A. After that the Ordinary right of B or C will be to redeem X and Y by paying off two-thirds of the mortgage dues. Either of them can exercise this right, and it is not a right of partial redemption, because the mortgage will be deemed to have been extinguished as regards X, and to the extent of one-third, and what remains is a mortgage of Y and Z for Rs. 200, assuming the original mortgage was for Rs. 300. Therefore, if either B or C now redeems X and Y, it is not a case of partial redemption but a case of redemption of the entire residue by one of the remaining mortgagors, and it is their ordinary right. But they have an additional right under the exception in section 60. The mortgagee having acquired X, the share of A, has broken the integrity of the mortgage and thereby given each mortgagor the right to redeem his own share by paying off the proportion of the mortgage dues corresponding to the proportion which the value of his share bears to the value of the entire property, that is to say, in addition to their ordinary right either B or C now has the right of partial redemption, under which B can redeem Y only by paying one-third of the mortgage dues or Rs. 100, and C can similarly redeem Z by paying one-third of the residuary dues.

It should now be clear that if the puisne mortgagee redeems his two villages Chapsia and Hafizpur by paying off the residue of the mortgage dues after setting off the proportionate value of the properties other than the four villages, this is his ordinary right and is not partial redemption and he cannot be deprived of it, particularly in view of the fact that he should so far as now possible, be given the benefit he would have had from marshalling.

If, however, the prior mortgagee has broken the integrity of the mortgage by acquiring “the share of a mortgagor”, then the exception in section 60 applies, and the puisne mortgagee is entitled to redeem Chapsia and Hafizpur by paying off not the entire residue but the proportionate amount of the dues which corresponds to the proportion at the time of the mortgage which the value of Chapsia and Hafizpur bore to the value of the entire mortgaged property. In short, if we assume for the sake of clarification as I suggested, that each item of the three represented one-third of the value, then in the former case the puisne mortgagee would have to pay two-thirds of the mortgage dues, and in the latter he would have to pay one-third only. He does not have to redeem Dubauli and Sundar, because he has already sold them in execution of his own prior decree.

We have, therefore, to ask ourselves, has the prior mortgagee broken the integrity of the mortgage? In my opinion, he has done so as a result of omitting to implead the puisne mortgagee in his suit. The position is this, that upon the puisne mortgage a portion of the equity of redemption became vested in the puisne mortgagee. Upon the mortgage he acquired an interest in the mortgaged property which included a share in the equity of redemption. The prior mortgagee sold up and himself bought the equity of redemption in execution of his decree, but as he had not impleaded the puisne mortgagee, the holder of a portion of the equity of redemption, that portion did not pass to him at the sale, and he became the owner only of that share in the equity of redemption which remained with the original mortgagor; that is to say, the act of the mortgagee brought the case within the exception provided in the last clause of section 60, and consequently the puisne mortgagee has become entitled to ask for partial redemption, by payment of the share of the dues which corresponds to the proportionate value of Chapsia and Hafizpur.

There is another reason for holding in the present case that the integrity of the mortgage has been broken. The objector was himself puisne mortgagee in respect of Dubauli and Sundar. At his purchase he took them subject to a mortgage. He, therefore, did not acquire that share in the interest of the mortgagor which had passed to the present appellant by virtue of his first mortgage.

As the proposition that the prior mortgagee when he purchases the property in execution, of a decree obtained in the absence of a puisne mortgagee of a portion of the property included in his mortgage breaks the integrity of the mortgage, may appear at first sight a little startling, it is perhaps advisable to deal with the question somewhat more extensively. Let us consider whether such a case comes formally within the wording of the exception provided in section 60. The provision runs as follows:

“Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor”.

I want first to draw attention to use of the words “remaining due on the mortgage”. As I have already said, apart from the exception what is regarded as payable is not necessarily the entire mortgage dues, but what remains due after any part of the debt has been extinguished. This wording, I suggest, supports my view that in any event nothing more will be payable than proportionate value of the four villages.

As to the exception, it has been held in numerous cases that what is meant by “the share of a mortgagor” is a share in the equity of redemption, which remains to the mortgagor after the mortgage. It is also necessary to remember that under section 59A any reference to mortgagors shall be deemed to include references to persons deriving title from them respectively. A mortgage is a transfer of an interest in specific, immovable property [section 58(a)] a mortgagee is, therefore, a transferee from the mortgagor of an interest in the property, and, therefore, will himself come within the terms of any reference to the mortgagor in respect of any other mortgage. In respect of any other mortgage he becomes the holder of a share of the mortgagor's interest. The puisne mortgagee, therefore, expressly comes within the wording “a person interested in a share only of the mortgaged property to redeem his own share only”. I shall cite authority to show that the share contemplated need not be a specified share, though indeed in such the actual proportionate value of the share could easily be worked out. The words “his own share only” must clearly mean in their context “that share only”. In the present case the puisne mortgagee decree-holder is interested in a share only of the mortgaged property, that is to say, two villages out of the total property mortgaged to the respondent, and what, he wants to redeem is that share, namely, the two villages Chapsia and Hafizpur. The puisne mortgagee, therefore, satisfies the necessary conditions for the application of the exception, and it only remains to consider whether the prior mortgagee has acquired “the share of a mortgagor”. I find it impossible to avoid the conclusion that he has done so, because he has purchased only that portion of the equity of redemption which remained with the original mortgagor. He has not purchased the share in the equity of redemption which is held by the puisne mortgagee as transferee of a portion of the mortgagor's equity of redemption and who, be it remembered, has become a person to be regarded as a mortgagor so far as the prior mortgagee is concerned (section 59A). In short, the equity, of redemption, so far as the prior mortgage is concerned, has become vested in two persons, out of whom the prior mortgagee has purchased the interest of one but not of the other. The conditions necessary for the application of the exception are, therefore, in my judgment, fully satisfied.

Only upon this view can the equities between the parties be fully given effect to. The inequity which forcing the puisne mortgagee to redeem the entire mortgage may involve is patent and blatant. Suppose the first mortgage is of a large number of properties for a very large sum whereas the second mortgage is a small one of a single insignificant item out of those properties. Then the puisne mortgagee is forced, though no fault of his own, to pay a very large sum which he may be quite unable to find, to redeem a large number of properties in which he has no interest or concern, and consequently to be faced with the necessity of bringing a possibly large number of contribution suits before he can get back his money. Had he been impleaded in the first mortgagee's suit as he should have been, he could have obtained his lull rights without all these difficulties simply by asking for marshalling and the sale of his villages last, if necessary at all, or even failing that he could still have obtained all his mortgage really gives him, namely the surplus sale proceeds at the sale, if any.

Now let us consider authority. I shall refer first to Musammat Azizunissa v. Komal Singh*. It is unnecessary to state the complete facts. So far as we are concerned they were that J had created a mortgage in favour of K in respect of properties (a), (b) and (c). Subsequently he mortgaged (c) in favour of D. K obtained a decree on the basis of his mortgage without impleading D, and in execution of this decree he himself purchased (a). This was treated as a severance of the security and a breach of the integrity of the mortgage. Upon D's mortgage a decree was subsequently obtained and in execution (c) was purchased by the decree-holder and delivery of possession taken. K in a second execution failed to obtain possession of (c) and sued for a declaration of title in respect of that property and recovery of possession. Alternatively, he asked that the successor of the puisne mortgagee might redeem property (c) alone on payment of the proportionate amount payable in respect of the said property. The defendant, however, claimed the right to redeem the entire mortgage. It was held that the defendant's right to redeem the entire mortgage was, in turn, subject to the plaintiff's right of redemption which was to be safe-guarded. The High Court, therefore, adjusted the equities between the parties by allowing the defendant to redeem property (c) only. This is, as I have said, a Patna decision. It is perfectly in point, and it is binding upon us. It has, moreover, been followed by Wort, J., of this Court in Amirchand v. Moti Pande. This also is a case directly in point. The first mortgagee obtained a decree on his mortgage without impleading the second mortgagee, and purchased the mortgaged properties at the auction sale including the property covered by the second mortgage, and on the first mortgagee failing to obtain possession of the property which was the subject of the second mortgage he brought a suit against the second mortgagee, challenging his mortgage as farzi. That mortgage was, however, held to be valid and as the first mortgagee had become the purchaser of the properties covered by his mortgage, and the integrity of the mortgage had, therefore, been broken, the second mortgagee was allowed to redeem his own share by paying his proportionate burden. It is interesting to note that in referring to Sheo Narain Sahu…Defendant v. Ram Nirekhan Ojha…Plaintiff . where the circumstances were almost precisely the same as in the case before him, the only difference being that “whereas in this case it is a question of two mortgages in that case it was a mortgage on the one hand and a purchase on the other”, the learned Judge says, “but in principle, of course, no difference is made”.

It will suffice to refer very briefly to cases of other High Courts. Moro Raghunath v. Balaji Trimbak is a case in which the mortgagee having become interested in a portion of the equity of redemption was not allowed in equity to execute his decree exclusively against one of the owners of the equity of redemption for the whole debt, and in order, to adjust the equities partial redemption was allowed.

Phulmani Chaudhrain v. Nageshar Prasad is a case where the Court held that the puisne mortgagee cannot redeem by simply paying the price for which the mortgaged property had been purchased by the prior mortgagee, but must pay the full amount due on the prior mortgage. But this was said only to distinguish the mortgage dues from the decretal amount, and in fact the court wound up by allowing partial redemption. They pointed out that certain persons interested in the equity of redemption were not parties. The only equitable method of doing justice between the parties was to allow the plaintiffs-respondents to redeem their own share by paying the proportionate amount of the mortgage debt (page 373).

Suraj Kishan v. Ajudhya Prasad Singh is an Oudh case, which is of great interest. Chamier, J.C, said that the prior mortgagee breaks up the security by purchasing part of the mortgaged property, because by his purchase he is deemed to have discharged that portion of the mortgage debt which was chargeable upon the property purchased, and he said: “The rule appears to be the same whether the person seeking to redeem is a mortgagee of part of property already mortgaged to another person or a person who has bought part of the interest of the mortgagor”. It was held that where the prior mortgagee has so acquired a portion of the equity of redemption he is not entitled to throw the whole burden of the mortgage debt on the remaining portion of the equity of redemption. The principles are considered at length, and the case will repay perusal. This case well illustrates the inequity to which I have already referred which would result from insisting upon full redemption in the case of a very large previous mortgage.

Another revealing case is Krishna Iyer v. Susai Reddiar. In that case it was held that the principle of the exception applies in whatever manner the equity of redemption is acquired by the mortgagee, whether by purchase in execution of a decree, by private treaty, inheritance, or device. The question what was meant by the words “share of the mortgagor” in section 60 was considered, and it was held that in the context it can only be the interest of the mortgagor outstanding after the creation of the mortgage, that is the ownership of the property minus the interest vested in the mortgagee, and according to legal phraseology it would be the equity of redemption, that is a right to redeem a particular mortgage I should add that I am not in agreement with all the conclusions of the learned Judges in that case.

Lastly, I will refer to Sarfaraz v. Mohammad Salim in which it was held that for bringing the case within the rule laid down in section 60 it was not necessary that the share in the equity of redemption acquired by the mortgagee must be specified.

The dues of which the proportion to be paid has to be calculated will not be the amount of the decree, but the amount of the mortgage, with interest up to the date when the prior mortgagee obtained possession. The measure of redemption is not the amount of the decree but the amount of the mortgage dues with interest up to the date when the prior mortgagee obtained possession by his purchase. After that date possession takes the place of interest, see Sarda Prasad v. Kanhai Lal, where it was held that the purchaser setting up the prior mortgage as a shield was entitled not to the amount paid at the auction but the principal amount on the mortgage with interest up to date of possession. Azizunnissa v. Komal Singh is also an authority on this point.

Position of prior mortgagee in the suit and in 7 execution:—

Before I conclude I should like to notice certain cases which seem at first sight to be inconsistent with the view I have taken. Most of them, however, are quite consistent with it. In so far as any of them lay down that where the prior mortgagee has not asked for a provision for his redemption in the decree, he can do so in the execution proceedings, I am afraid I cannot agree.

Ram, Narain Sahoo v. Bandi Prasad is a case where the facts were almost identical with those of the present case. The prior mortgagee brought a suit for the sale, but did not implead the puisne mortgagee. In execution he purchased the property himself, and obtained possession. The puisne mortgagee then sued, and impleaded the prior mortgagee. He also got a decree for sale, and purchased his mortgaged property. He obtained possession by ousting the prior mortgagee. The latter then applied to the execution court, and asked to be restored to possession and that was allowed, and the High Court approved of it. It was quite rightly laid down that the puisne mortgagee's right when he was not a party to the first mortgagee's suit is limited to a right of redemption or sale of the mortgaged property subject to the lien of the first mortgagee or auction purchaser on a decree by the latter. But the Court wrongly, in my opinion, added that the puisne mortgagee cannot compel the first mortgagee to part with possession without redeeming the first mortgage. This seems to have been based on the view that inasmuch as the right to possession depends upon the purchase of the outstanding equity of redemption and is ordinarily determined by the priority of the respective sales at the instance of the different mortgagees, the prior mortgagee being purchaser at the prior sale was entitled to retain possession as against the puisne mortgagee, the purchaser at the subsequent sale. But the positions, in my judgment, is this, that the prior mortgagee or the purchaser who is subrogated to his rights, has after his purchase a dual capacity as against the puisne mortgagee. In one capacity or against the latter he is simply a prior mortgagee, because what happened in his suit is not binding on the puisne mortgagee. In this capacity as such, his mortgage being a simple one, he has no right to present possession. He has merely a right to use his mortgage as a shield and insist on his priority. His other capacity is that of purchaser of the equity of redemption, and that, the mortgage being simple does give him a right to present possession. He has stepped into the shoes of the mortgagor. But that right is defeasible by the puisne mortgagee in the latter's suit, unless the prior mortgagee cares to redeem the puisne mortgage. As such he can, of course, exercise his right of redemption, but if he does so it must be as a judgment-debtor under the terms of the decree and within the period allowed by the decree to which he was a party. If the puisne mortgagee has once sold property in execution of his final decree that right is gone. He must exercise his right of redemption if he wants to before the preparation of the final decree for sale.

I do not mean, of course, to suggest that he cannot satisfy the decree as provided by Order XXXIV, rule 5, right up to the date of confirmation of the sale. He can certainly do so, but that is not strictly a question of redemption, and no case arises for allowing him a fresh period in which to redeem.

In Gangayam Vanhdtaramana Iyer v. Gomyertz it was held that in a suit brought by the puisne mortgagee to which the prior mortgagee who has also become the owner of the equity of redemption is made a party the decree must direct the redemption by the second mortgagee and then, for sale if the prior mortgagee as owner of the equity of redemption does not redeem the second mortgage. The second mortgagee must show sufficient reason for departing from this rule, and is not entitled to a decree for sale subject to the first mortgage in the absence of special circumstances. This case, however, was before the enactment of Order XXXIV, rule 1, Code of Civil Procedure, under, which the prior mortgagee is no longer a necessary party. And it deals with the rights of the prior mortgagee to ask for such a provision in the decree.

Again, in Manohar Lal v. Ram Bdbu it was held that the puisne mortgagee has no absolute right to bring the property to sale in satisfaction of his mortgage subject to the prior mortgage. That case also deals with the rights of the parties in the suit, and the decision proceeded mainly upon equitable considerations peculiar to the facts of that case, and partly upon English practice, a reference being made to Daniell's Chancery Practice, 7th edition, page 217, for the proposition that in England it would seem to be the rule that where a prior mortgagee is made a party the plaintiff (that is the puisne encumbrancer) must be ready to redeem him. The learned Judges seem to think that the puisne mortgagee could not be in any better position than if he had been impleaded in the prior mortgagee's suit; and had he been so impleaded he would only have had a right to redeem the prior mortgage. But it seems to me that the failure of the prior mortgagee to implead the puisne mortgagee does put the latter in a better position. It is a question of who sues first, and the prior mortgagee's laches in failing to implead allows the second mortgagee to sue upon his mortgage before he has ever been placed in the position of a defendant by the prior mortgagee.

In Budhi Lal v. Administrator-General of Madras High Court a Bench of the Allahabad High Court said: “The general rule is that where a puisne mortgagee wishes to sell property which has already been sold in execution of a decree passed under a prior mortgage without impleading the puisne mortgagee the decree must direct redemption by the second mortgagee of the first mortgage, and then an order for sale if the purchaser of the property does not wish to redeem the second mortgagee. This rule applies equally to the case of the auction purchaser. “This case expressly followed Gangayam Venkataramana Iyer v. Gompertz. It also deals with the position in the suit, and not the position in execution of a decree for sale.

In Nanarsi Goldsmith v. Bhulla, which is a single Bench case, it was observed: “the rule that under the new Code of Civil Procedure the puisne mortgagee can bring the mortgaged property to sale without impleading a prior mortgagee would apply in an ordinary case in which the property belongs to the mortgagor, but where the relief claimed by the puisne mortgagee is against the mortgaged property which has been sold in satisfaction of a decree on a prior mortgage to which he was not a party, the rule would not apply. He must first redeem, the prior mortgage and then bring the property to sale.” I agree that as purchaser of the equity of redemption the prior mortgagee or his subrogee becomes a necessary party as such, but I have already indicated abundant authority for the proposition that, though impleaded in that capacity the Court need not enter into the equities of the prior mortgagee, unless the plaintiff has chosen to raise the matter by attacking the priority, or the prior mortgagee insists upon his redemption being provided for in the decree. In my view, if the plaintiff, as he has done in the present case, has obtained a simple decree for sale he cannot be deprived of his right to execute that decree.

I have already referred to Sarda Prasad v. Kanhai Lal in another connection. In this case it was further held that the purchaser was entitled to set up his prior mortgages as a shield and to claim that the plaintiff should redeem those mortgages before the property in satisfaction could be put to sale. What was held, however, was that he could set up his rights in the suit, and obtain provision in the decree.

There is one case of the Judicial Commissioners court of Peshawar, namely, Motiram v. Basheshar Nath where the view was taken that when the prior mortgagee sets up his prior mortgage as a shield he can claim payment of the amount due under the prior mortgage on the prior mortgage decree where the puisne mortgagee seeks a decree for sale in his favour. I have already indicated that, in my opinion, the amount payable is not that specified in the decree, to which the puisne mortgagee was no party. If he pays at all it must be upon the mortgage, and not under the decree. This case also does not deal with the position in execution after a final decree for sale has been passed.

There is a Patna case which is relevant. That case is Mahadeo Rai v. Adya Prasad. It was held that where the prior mortgagee had purchased the mortgagor's interest in the property and obtained possession of it and subsequently the puisne mortgagee brought a suit on the foot of his mortgage for sale of the property impleading the prior mortgagee, the subsequent mortgagee was entitled to get the property sold subject to the prior mortgage, but in such a case the purchaser in execution of the decree would not be entitled to dispossess the prior mortgagee without redeeming his mortgage. This case is perfectly consistent with the view I have taken, because the prior mortgage was an usufructuary mortgage, and, therefore, the prior mortgagee was entitled to possession in his capacity as a mortgagee, and if he could set up his mortgage as a shield he could, of course, insist on retaining possession until he was redeemed. There is a clear distinction between the cases where the mortgage is usufructuary and where, as in the present case, it is simple.

The Privy Council in a case I have already referred to, Sukhi v. Ghulam Safdar Khan, undoubtedly laid down that where the prior mortgagee having obtained a decree under Order XXXIV is sued by the puisne mortgagee, whom he has not joined in the former suit, he is entitled in all cases in which he would have been entitled before the coming into force of the Act of 1832 to use his prior mortgage as a shield, and to have the discharge of his decree made a condition to a sale decree in favour of the puisne mortgagee.

The Privy Council held this with reference to a prior mortgage by conditional sale and a decree upon a foreclosure suit; but it is not necessary to consider whether that makes any difference because as I have already indicated the decision is perfectly consistent with the view I have taken. For the Privy Council were, considering the rights of the prior mortgagee in the suit and not at the execution stage of a decree for sale. It may well be that the prior mortgagee can, if impleaded in the suit, insist upon a provision for his redemption before the preparation of a final decree for sale. But if, as in the present case, he does not do that and allows a sale decree to be passed, and does not even appeal against it, then, in my judgment, he cannot be allowed to ask the Court at the execution stage to go behind that decree, and any shield he sets up in execution must be consistent with the operation of the decree. Where, as in the present case, his right to sue upon the prior mortgage has become barred, the difficulty, in my opinion, can only be overcome by his asking the Court to hold the sale in accordance with the provisions of Order XXXTV, rule 12, Code of Civil Procedure, and in suitable cases it is to be expected that the Court will then exercise discretion in his favour.

The appeal, therefore in my view, succeeds in part. The Court below should upon the objection in the first place take evidence as to the proportion which the value of Chapsia and Hafizpur bore at the date of the mortgage to the value of the entire property and in accordance therewith should work out the: proportionate sum which the decree-holder must now pay for redemption of those two villages. In assessing the value of the properties at the time of the mortgage the learned Subordinate Judge must remember that the villages Dubauli and Sundar were mortgaged subject to a prior mortgage. Their value at that time would, therefore, be only anything in excess over the mortgage dues at that time on the prior mortgage, which sum should be set-off in assessing their value. The decree-holder should next be allowed a suitable time to redeem the objector by payment of the amount so worked out should he care to do so. If he does not exercise this option within the time allowed, then the Court, unless the objector satisfies the decree under Order XXXIV, rule 5, Code of Civil Procedure, should proceed to sell the two villages, but if the objector accords his consent, then the sale should be in accordance with the provisions of Order XXXIV, rule 12, and the objector should be allowed first claim upon the sale proceeds to the extent indicated.

It is perhaps advisable to give one further direction. Should the decree-holder redeem his villages and then sell them free from encumbrances, he will be entitled out of the sale proceeds to claim first the amount remaining due on his puisne mortgage, and, secondly, the amount which he has had to pay to redeem the prior mortgage. If after this there remains any surplus, it should go to the prior mortgagee as owner of the equity of redemption.

I would make no order for costs.

Bennett, J.:— This is an appeal from the order of the Subordinate Judge, Chapra, allowing an objection to the execution of a mortgage-decree for sale.

It appears that in 1925 two villages, Dubauli and Sundar, along with certain other properties the details of which are not stated in the order under appeal, were mortgaged to the appellant Babu Raj Narain Sinha. In 1927, two other villages, Chapsia and Hafizpur together with other properties, the details of which again are not stated in the order under-appeal were mortgaged by the same person to Raj Narain. In 1926 in the interval between these two mortgages the four villages of Dubauli, Sundar, Chapsia and Hafizpur, together with others of which also the details are not given in the order under appeal were mortgaged to the respondent Babu Brahmadeva Narain Sinha. Some time before 1932 Brahmadeva instituted a mortgage suit for sale, but he did not implead. Raj Narain who was the puisne mortgagee of villages Chapsia and Hafizpur. In the execution that followed the decree passed in that suit, Brahmadeva purchased the mortgaged properties. In 1933 Raj Narain instituted a mortgage suit on the two mortgages of 1925 and 1927, abovementioned, and in that suit he impleaded Brahmadeva as a defendant on the ground that he was a puisne mortgagee of villages Dubauli and Sundar. It does not appear, however, that he attacked the priority of Brahmadeva's mortgage so far as the villages Chapsia and Hafizpur were concerned and this priority, was expressly recognised in the judgment. In the result a mortgage decree for sale was passed in favour of Raj Narain and in execution of that decree, villages Dubauli and Sundar were sold and purchased by the decree-holder. As a portion of the mortgage money remained unsatisfied, Raj Narain applied further to execute his decree by sale of the two villages, Chapsia and Hafizpur whereupon Brahmadeva filed the present application objecting to the execution on the ground that prior to his own mortgage decree he was a prior mortgagee of these two villages and they cannot, therefore, now be sold in execution of the decree obtained by Raj Narain unless the latter deposits in Court the entire decretal amount decreed to Brahmadeva on his mortgage decree.

It was agreed at the hearing before the learned Subordinate Judge that prior to the mortgage decree obtained by the applicant Brahmadeva he was the prior mortgagee of villages Chapsia and Hafizpur. The ??? party Rai Narain contended, however, that Brahmadeva, was not entitled to use that mortgage as a shield against the execution of Raj Narain's decree because his right to enforce his prior mortgage against Rai Narain the subsequent decree-holder, was now barred by limitation.

The learned Subordinate Judge in reiecting the contention of the opposite-party relied upon the cases of Ram Sanehi Lal v. Janki Prasad. Sukhi v. Ghulam Safdar Khan and Sarda Prasad v. Kanhai Lal as establishing the principle that a prior mortgagee, who in execution of his mortgage decree brings the property to sale and purchases the same, is entitled to keep his prior mortgage alive and to use it as a shield against a puisne mortgagee who was not made a party to the suit on the prior mortgage and that this right to set up the prior mortgage as a shield is not defeated by the 12 years' rule of limitation. The principle established by the above-mentioned decisions with which I agree, is supported and Perhaps more adequately expressed in Ram Sarup v. Ram Lal, Lawman Ganesh Rajendra v. Mathurabai Narayan Govind, Karnpan-Chettiar v. Venkata Parumal(6) and Mian Nizam, Din v. Lala Ram, Sukh Das(7).

Mr. Jaleshwar Prasad, who argued the case of the appellant, submitted, first, that the right of the prior mortgagee who, in execution of his decree on the prior mortgage, had purchased the property at court-auction, to set up his prior mortgage as a shield against the puisne mortgagee, who was not made a party to the mortgage suit on the prior mortgage, did not extend to a case where the right of the prior mortgagee to enforce his mortgage would at the date of the proceeding taken by the puisne mortgagee have become time barred.

The first case relied upon on behalf of the appellant, Bijai Saran Sahi alias Bijai Bahadur Sahi v. Rudra Bageshvmri Prasad Bahadur Sahi does not appear to me to be relevant to the question here in issue. All that was decided in that case was that the defendants who were in possession under an invalid contract of sale had no answer to a suit for possession at the instance of the owners of the equity of redemption in the property.

Mr. Jaleshwar Prasad next relied upon Sm. Dhapubai Mini v. Chandra Nath Chakravorty. That was a case in which a mortgagee who had purchased the mortgaged property in execution of his mortgage decree for sale endeavoured to obtain possession from a tenant whom he had failed to make a party to the suit and whose tenancy would have been terminated in the mortgage suit if he had been so made a party. There the mortgagee was endeavouring to use his mortgage not as a shield against the puisne mortgagee but as a sword against the tenant and it was rightly held that he could not fall back upon his mortgage as, admittedly, the right to enforce the mortgage had been barred by limitation before the institution of the suit.

Similarly, in Banwari Lal v. Nand Ram it was held that a mortgagee who sues on his mortgage and neglects to implead a transferee of a part of the mortgaged property cannot, after limitation has expired, bring a separate suit against the transferee so omitted, calling upon him to redeem the mortgage. Here, again, the mortgagee was endeavouring to use his mortgage not as a shield as in the present case but as a sword with which to attack the transferee, and he rightly failed.

Similarly, in Guruprasad Sukul v. Tarini Charm Debnath it was held that a mortgagee, decree-holder who purchased the mortgaged property in execution of his own decree but whose right to enforce the mortgage is barred cannot thereafter in a suit for possession brought by him against the puisne mortgagee compel the latter to redeem his mortgage.

Mr. Jaleshwar Prasad also referred to the Full Bench decision of the Allahabad High Court in Ram Sanehi Lal v. Janki Prasad and relied upon one of the conclusions stated, by the learned Acting Chief Justice (at page 1056 of the Report) to the effect that—

“If the purchaser in execution of the prior mortgage decree is not in possession and is suing, as plaintiff, the purchase in execution of the subsequent mortgagee's decree, he cannot recover the mortgage money after limitation has run out”.

The hypothetical case stated by the learned Acting Chief Justice is again, one, where the prior mortgagee was endeavouring to use his mortgage not as a shield but as a sword.

In my opinion, these cases do not affect the principle illustrated in the cases previously cited that the right of the prior mortgagee to use his mortgage as a shield is not affected by the fact that his right to enforce the mortgage has become time barred. This principle is itself an illustration of the more general principle that limitation affects only the enforcement of rights and does not operate to extinguish rights.

In my opinion, therefore, this first contention of the appellant fails.

Alternatively to his first point, Mr. Jaleshwar Prasad raised a plea of res judicata and contended that in any event it was not open to the applicant who was a party to the suit to avail himself in the execution proceedings of his right to Use his prior mortgage decree as a shield since that matter might and ought to have been put in issue in the suit. He referred to the decision of the Judicial Committee in Syed Mahomed Ibrahim Hossain Khan v. Ambika Prasad Singh In that case certain properties were mortgaged, firstly, in 1874, by a zarpeshgi pattah to secure repayment of Rs. 12,000 in twelve years, secondly, in 1879, 1880, 1883, and in January, 1888, by simple mortgages to different persons, and thirdly in February, 1888, to the plaintiff's predecessor in title to secure the payment in two years of the amount of Rs. 12,000 which by agreement with them was applied in paving off the amount due to the zarpeshgidar. The third party defendants were the decree-holders and purchasers of certain of the properties in suit under decrees obtained to enforce the mortgages of 1879, 1888, 1883 and January, 1888. The plaintiff's suit was based on the mortgage of February 1888, and he claimed that as the monies advanced by his predecessor in title under the mortgage of February, 1888, had been used to repay the monies due under the zarpeshgi deed of 1874 his was, in respect of his mortgage of February, 1888, in the position of an assignee of the zarpeshgi deed of 1874. The third party defendants contended that they had impleaded the plaintiff's predecessor in title as a subsequent mortgagee and so as a, necessary party to their mortgage suits, that if the plaintiff's predecessor in title had wished to establish any priority for his mortgage of February, 1888, he might and ought to have claimed such priority in those suits and that having failed to do so, the issue was now res judicata. It is clear that the rights of the plaintiff in this case under the assignment of the zarpeshgi deed was time barred and the plaintiff, in effect, was trying to avoid that bar by attaching his rights under the zarpeshgi deed to his rights under the subsequent mortgage of February, 1888. This claim he obviously might and ought to have raised in the previous suits and the defendants contention was, therefore, upheld by the Judicial Committee. The question that arises therefore in this case is whether the applicant here failed in any degree incumbent upon him under section 11, Civil Procedure Code, to claim the priority of his own mortgage over the mortgage relied upon in the suit brought by the opposite-party. It is perfectly; clear that where a prior mortgagee is made a party to a mortgage suit for sale brought by a subsequent mortgagee, who neither attacks the prior mortgage nor seeks to postpone it to his own, the failure by the prior mortgagee to appear in the suit does not in any sense render the decree in that suit res judicata against the prior mortgagee so as to debar him there after from bringing the property to sale in enforcement of his own mortgage—Radha Kishun v. Khurshed Hossain. In so far as the prior mortgage is attacked it is, of course, incumbent upon him to appear and defend his right, otherwise the issue will be deemed to have been decided against him. It is also perfectly clear, however, that Brahmadeva did appear in the suit brought by Raj Narain and that he successfully defended the priority of his mortgage, because the court in that suit recorded a finding to that effect. The mere fact that there is no mention of his prior mortgage in the decree cannot give rise to a presumption that issue was decided against him when the judgment itself shows that the issue was decided in his favour. Indeed the priority of his mortgage was admitted in these very execution proceedings. In my opinion, therefore, this alternative contention of the appellant also fails.

Mr. Jaleshwar Prasad then argued that the final provision of section 101 of the Transfer of Property Act is to be read as prohibiting a foreclosure or sale by a puisne mortgagee following a purchase of the right of redemption by a prior mortgagee unless the subsequent mortgagee either redeems the prior mortgagee or forecloses or sells the property subject thereto and that the subsequent mortgagee has the option either to redeem the prior mortgagor or to bring the property to sale subject to the prior, mortgage. That being so, he further contended that since the enforcement of the prior mortgage would in any event have now become time barred, there is no point in selling subject thereto and that in the circumstances of the case the subsequent mortgagee, Raj Narain, is entitled to execute his decree by sale of these two villages free from incumbrance. I do not agree with this contention. The purpose of section 101 of the Transfer of Property Act is primarily to protect the rights of a prior mortgagee under his prior mortgage in the event where he acquires the rights of the mortgagor and to enable him to pursue those rights as against a puisne mortgagee. The section applies, expressly, as well to a purchase by agreement with the mortgagor as to any other mode of acquisition by the prior mortgagee of the rights of the mortgagor and there is, in justice, no possible reason to distinguish the case of an acquisition by purchase by agreement with the mortgagor, to which agreement a puisne mortgagee is necessarily a stranger, from the case of an acquisition of an auction purchaser in execution of the prior mortgagee's own mortgage decree and this is so irrespective of whether or not the puisne mortgagee was impleaded in the suit leading to the prior mortgagee's decree. It would entirely defeat the whole object of section 101 of the Transfer of Property Act if a puisne mortgagee could extinguish the rights under his prior mortgage of a prior mortgagee who has purchased the rights of the mortgagor simply by waiting until the enforcement of the prior mortgage was barred by time and then bring a suit to enforce his own mortgage and claim to exercise an Option entitling him to effect to sell the mortgaged property free from encumbrance. The alternative of redemption or sale subject to the prior mortgage contained in the final provision of section 101 of the Transfer of Property Act must, therefore, be lead in the light of the remaining provisions of the section. Even, if therefore, this final provision of section 101 of the Transfer of Property Act is to be read as conferring an option upon the puisne mortgagee, as to which it is not necessary for me to express any final opinion, that option falls to be restricted to the case where the alternative of a sale subject to the prior mortgage effectively exists and, in my opinion, it no longer so exists when the enforcement of the prior mortgage is barred by time. To hold otherwise would confer no real right upon the puisne mortgagee, but would merely and unnecessarily complicate the procedure, because the prior mortgagee is in practice always in the position of being able to force the puisne mortgagee to redeem. If an order for the sale of the mortgaged property subject to his prior mortgage were passed against his wishes or his interest, all the prior mortgagee has to do is to apply under Order 34, rule 2, for an order, which could not properly be refused, that the mortgaged, property be sold free of encumbrance and then attend the auction sale and bid up to the amount required to redeem his mortgage.

In the circumstances of this case, therefore, the right of the puisne mortgagee to bring the property to sale in execution of his decree must, in my judgment, be subjected to his redemption of the prior mortgage.

The ordinary right of redemption that may be exercised by a puisne mortgagee, of course, is that conferred by section 91 of the Transfer of Property Act, that is to say, a right to redeem the entire mortgage. The amount of the mortgage debt due to Brahmadeva was not lessened by the purchase by Raj Narain, qua prior mortgagee of the two villages Dubauli and Sundar or by their consequent exclusion from Brahmadeva's mortgage, and the ordinary right of redemption that might have been exercised by Raj Narain qua puisne mortgagee of villages Chapsia and Hafizpur following his purchase qua prior mortgagee of villages Dubauk and Sundar was, therefore, to redeem the remaining properties subject to Brahmadeva's mortgage upon payment of the full existing mortgage debt. Mr. Jaleshwar Prasad, however, contended that by his auction-purchase of the properties mortgaged to him under the mortgage of 1020. Brahmadeva had acquired the share of a mortgagor within the meaning of that phrase in the proviso to section 60 of the Transfer of Property Act and that, therefore Raj Narain as a person interested in a share only of the mortgaged properties, namely, the villages Chapsia and Hafizpur, was entitled to redeem those properties by payment of an amount proportionate to their value at the date of the mortgage as compared with the value at that date of the other properties mortgaged to Brahmadeva. This contention, in view of the use of the word “only” where it occurs in the third place the proviso to section 60 of the Transfer of Property Act, turns entirely upon the meaning of the phrase “the share of a mortgagor” in that proviso.

This phrase was specifically considered by a Division Bench of the Madras High Court in Eswara Krishna Iyer v. Mariya Susai Reddiar and in the course of his judgment, Venkatarama Rao, J., defined it as follows:—

“the interest of the mortgagor outstanding after the creation of the mortgage, that is, the ownership of the property minus the interest vested in the mortgagee………………………”

So far, I entirely agree, but His Lordship went on to state—

“and according to legal phraseology it would be the equity of redemption, that is, a right to redeem a particular mortgage”.

With great respect, I am unable to agree with this latter proposition.

In the case, as here, of a simple mortgage in India, there is no such thing as an “equity of redemption” in the sense which that phrase conveys in English law, because of the fundamental difference that, whereas in the law of England the legal ownership of the mortgaged property vests in the mortgagee, in the case, at least, of a simple mortgage in India the ownership of the mortgaged property remains vested in the mortgagor. It would avoid confusion, if, in relation, at least, to a simple mortgage in India, the use of the phrase “equity of redemption” were altogether excluded. No doubt, the right of redemption conferred upon the mortgagor by section of the Transfer of Property Act corresponds to the rights conferred upon the owner of the equity of redemption in English law, but, at least, in the case of a simple mortgage, this right of redemption is not synonymous with the interest of the mortgagor outstanding after the creation of a simple mortgage because he remains also the owner of the property. The mortgagor in India, as has been truly said, “is the owner who has parted with some rights of ownership and the right of redemption is a right which he exercises in virtue of his residuary ownership to resume what he has parted with”. This is the clear result of the definition of the term ‘mortgagor’ in section 58 of the Transfer of Property Act. The share of a mortgagor, therefore, at least in the case of a simple mortgage is a share qua owner, and this share falls, as such, to be sharply distinguished from the shares of all other persons interested in the mortgaged property and, in my judgment, it is clearly such a share that is contemplated by the Legislature in the proviso to section 60 of the Transfer of Property Act. When this proviso is so read, the only effect thereon of section 59A of the Transfer of Property Act, which was introduced by the amending Act of 1929, is to include under the term “mortgagor” persons drawing title, from the mortgagor in the sense in which that term is used in the proviso, that is to say, qua owner. In the case of a simple mortgage, therefore, the mortgagee acquires, in whole or in part, the share of a mortgagor, within the meaning of that phrase as used in the proviso to section 60 of the Transfer of Property Act, whenever he acquires the ownership of the mortgaged property, in whole or in part, but he does not necessarily do so whenever he acquires a share in the so called equity of redemption when that phrase is equated to a right of redemption. Many classes of persons ‘derive their title from the mortgagor’. Many, classes of persons may be ‘interested in a share of the property only’ within the meaning of that phrase in the proviso to section 60 of the Transfer of Property Act and still more classes of persons are entitled to a right of redemption under section 91 of the Transfer of Property Act, but none of them possess ‘the share of a mortgagor’, in the case of a simple mortgage, unless the share in question is a share qua owner, that is to say, in the words of section 58 of the Transfer of Property Act, the share of a person, or his successor in interest as such, who has transferred an interest in immovable property for the purpose of securing the payment of a pecuniary obligation. To take a simple case, a prior mortgagee who acquires the interest of a puisne mortgagee does not thereby acquire ‘the share of a mortgagor’ although the puisne mortgagee (1) derives his title from the mortgagor, (2) may be a person having an interest in a share only of the mortgaged property and (3) is entitled to a right of redemption.

I ought, perhaps to add that, in my opinion, the words ‘the share of a mortgagor’ in the proviso to section 60 of the Transfer of Property Act are obviously, apt to include as well the case where there is only a single mortgagor as the case where there are two or more mortgagors. The word ‘mortgagor’ in the phrase ‘the share of a mortgagor’ is not used in contrast to the share of some other mortgagor, but in contrast to the share of a person interested in the mortgaged property otherwise than as mortgagor qua owner and the phrase ‘the share of a mortgagor’ does not therefore, import any restriction of the proviso to the cases where there are two or more mortgagors.

Applying the above considerations to the facts of this case, it is clear that Brahmadeva, by purchasing the mortgaged properties in execution of his own decree for sale, acquired ‘the share of a mortgagor’ and, therefore, that Raj Narain who is interested only in the villages Chapsia and Hafizpur out of those properties is entitled to redeem them by a proportionate payment.

But that is not the whole of the matter. The provisions of the Transfer of Property Act are not; exhaustive and the duty of the Court, as well in execution of a mortgage decree as in a, mortgage suit for foreclosure or sale, subject, of course, for that, purpose, to the relevant express provisions of law, to any res judicata and the inability of the executing Court to go behind the decree, is to work out the whole provision between the parties upon a fair and equitable basis.

Brahmadeva's rights in respect of the properties auction-purchased by him are, under section 101 of the Transfer of Property Act, twofold, firstly, he possesses the rights of the mortgagor of whom he is the assignee and secondly he possesses his own rights as prior mortgagee—see Musammat, Dhanwanti Chaudhurain v. Hargobind Prashad. His right to redeem Raj Narain's puisne mortgage is not ousted by the exercise of Raj Narain's right to redeem his own prior mortgage. Where the right of redemption of the prior mortgagee as assignee of the mortgagor conflicts with the right of redemption of the puisne mortgagee, it is well settled that the right of the prior mortgagee to redeem the puisne mortgagee takes priority—see Kedar Prosanna Lahiri v. Girindra Prosad Sukul, Rambaran Chaube v. Bhagwati Pande, Musammat Azizunissa v. Komal Singh* and Budhi Lal v. Administrator-General of Madras High Court. Moreover, although Brahmadeva's right qua assignee of the mortgagor to redeem the puisne mortgage was in issue in Raj Narain's suit thereon, that right is by Order 34, rule 5, Civil Procedure Code, converted into a right to redeem the puisne mortgage at any time prior to the confirmation of the sale of the property by payment of the decretal amount plus, if a sale has taken place, a sum equal to five per cent of the purchase-money paid into Court. In the circumstances of this case and for the reasons already explained, Raj Narain cannot bring the properties to sale unless he first redeems the prior mortgage in whole or in part; that redemption must precede the sale and it follows that Brahmadeva's right under Order 34, rule 5, at least qua assignee of the mortgagor, would still be open to him. Provision must, therefore, be made for this contingency.

In ordinary circumstances, Brahmadeva as prior mortgagee would have the right under Order 34, rule 12, to apply for the sale of the mortgaged properties free from encumbrance, but, if he does so the Court in the exercise of its discretion under that rule, in the circumstances of this case and in pursuance of its general duty as above mentioned, would not allow him to receive the amount of his mortgage debt in full and as to retain the properties in the villages other than Chapsia, and Hafizpur, and would, therefore, only allow him to recover from the proceeds of sale an amount, proportionate to the value which the villages Chapsia and Hafiznur hear to the whole of the mortgaged properties exclusive of the two villages Dubauli and Sundar. In the circumstances of this case, however, if the puisne mortgagee elects to redeem the prior mortgage, whether as to all the remaining properties subject to the prior mortgage or as to villages Chansia and Hafizpur alone, and deposits the money in Court within the time fixed therefor and thereupon the prior mortgagee elects not to redeem the puisne mortgagee, the latter's application under Order 34, rule 12, will properly be rejected because the prior mortgagee can secure the same result by taking the money out of Court. If the puisne mortgagee elects not to redeem the prior mortgagee the execution petition will fall to be dismissed. There will similarly be an end to the case, if the puisne mortgagee elects to redeem the prior mortgagee and the latter thereupon elects to redeem and deposits the redemption money for the puisne mortgage. In the circumstances of this case, the contingency of an application by the prior mortgagee under Order 34, rule 12, will only arise if that application is made before the puisne mortgagee has made his election whether or not to redeem the prior mortgage and this would appear to be unlikely.

The right of redemption conferred, amongst others, upon a puisne mortgagee by section 91 of the Transfer of Property Act is, in its practical aspects the same as that conferred upon the mortgagor by section 60 of that Act, that is to say, that he is entitled to redeem upon payment of the mortgage debt. Where the prior mortgagee is in possession by virtue of his purchase in execution of his own mortgage decree, the fruits of his possession are properly regarded as replacing his right to the payment of interest. See the observations of the Judicial Committee in Umes Chunder Sircar v. Zahur Fatima. In such circumstances, therefore, the full mortgage debt will be the amount of the principal outstanding at the date of the prior mortgagee's decree plus interest at the agreed rate up to the date when the prior mortgagee obtained possession of the mortgaged property.

In the circumstances of this case, therefore, the proper course to be followed upon the puisne mortgagee's decree for sale is in my opinion, as follows:—

(1) The executing Court should allow the puisne mortgagee decree-holder a reasonable time within which to decide whether or not he desires to redeem the prior mortgage either as to the whole or as to villages Chapsia and Hafizpur only.

(2) If the puisne mortgagee decree-holder elects to redeem the prior mortgage the Court should proceed to take an account of and fix the amount to be paid into Court by the puisne mortgagee. If he elects to redeem villages Chapsia and Hafizpur only, this sum will be that proportion of the full mortgage debt plus interest as above defined which the value of villages Chapsia and Hafizpur at the date of the prior mortgage bore to the value at that date of the entire mortgage properties exclusive of villages Dubauli and Sundar.

(3) Having ascertained this amount, if necessary, the Court will fix a reasonable time within which the puisne mortgagee must deposit the amount in Court.

(4) If the puisne mortgagee elects not to redeem the prior mortgage or if he fails to deposit this amount, within the time fixed, the execution petition will be dismissed with costs.

(5) If the puisne mortgagee deposits the money within the time so fixed, the Court should then allow the prior mortgagee a reasonable time within which to elect whether or not to redeem the puisne mortgage and, in the former event, within which to deposit the amount thereof, that is to say, the decretal amount plus, interest, if any, to date, in Court. If that is done, the puisne mortgagee will be entitled to withdraw the amount and that will be an end of the matter. If, however, the prior mortgagee elects not to redeem the puisne mortgagee or fails to deposit the money within the time allowed therefor by the Court then the puisne mortgagee will be entitled to an order for the sale of the mortgaged properties the subject of the prior mortgage, either as to the whole exclusive of villages Dubauli and Sundar or as to the two villages Chapsia and Hafizpur, as the case may be, free from the encumbrance thereof, and the prior mortgagee will be entitled to withdraw the redemption monies deposited by the puisne mortgagee.

I would therefore, allow the appeal in part and direct that the case be remitted to the Subordinate Judge an order that he may proceed as abovementioned. I would make no order as to costs.

Manohar Lall, J.:— This case has been referred to me as the learned Judges of the Division Bench who heard this appeal are divided in their opinion as to the manner in which the appellant should be allowed to sell the mortgaged properties in the undisputed circumstances which are about to be narrated.

On the 16th of November, 1925, Tej Pratap Narain Singh executed a simple mortgage in favour of Raj Narain Sinha, the appellant. The properties given in security consisted of villages Dubauli and Sundar along with certain other villages. On the 28th of March, 1926, Tej Pratap Narain Singh executed a simple mortgage in favour of Brahamdeo Narain Singh, the father of Saligram Singh, the respondent in this case—the properties given in security were the same villages Dubauli and Sundar and two other villages Chapsia and Hafizpur and some other villages. On the 26th of July, 1927, Tej Pratap Narain Singh executed a simple mortgage in favour of Raj Narain Sinha and in security he gave villages Chapsia and Hafizpur and some other villages.

It will be noticed, therefore, that Raj Narain Sinha is a prior mortgagee with regard to villages Dubauli and Sundar and is a subsequent mortgagee with regard to villages Chapsia and Hafizpur.

In between 1930 and 1932 Brahamdeo Narain Singh sued to enforce his mortgage of 1926 and having obtained a decree put it into execution and purchased all the villages which were in his mortgage and obtained delivery of possession, but he did not make Raj Narain Sinha a party to the suit.

In the year 1933 Raj Narain Sinha instituted a suit to enforce his mortgages of 1925 and 1927 and to this suit he impleaded Brahamdeo Narain Singh and his son Saligram Singh and others alleging them to be subsequent transferees of the four villages. In that suit, out of the subsequent transferees, only Brahamdeo Singh appeared as defendant no. 5 and raised the defence that the mortgages sued upon were executed with the object of defeating his claim. He also pleaded that this defendant was a prior mortgagee in respect of villages Chapsia and Hafizpur mentioned in the second mortgage bond of the plaintiff and that the defendant had no notice of the mortgages of the plaintiff, and further that the defendant was entitled to marshalling and prayed that the plaintiff should be compelled to realise his money due under the first bond by sale of the villages other than Dubauli and Sundar.

The learned Subordinate Judge who pronounced the judgment on the 27th of June, 1934, came to the conclusion that he was not inclined to place any reliance on the witnesses examined on behalf of defendant no. 5 that he had no notice of the mortgages of the plaintiff. He also refused to allow marshalling to defendant no. 5 as in his opinion section 81 of the Transfer of Property Act had no application to the facts and circumstances of the case and observed that evidently the mortgage of defendant no. 5 was subsequent to the first bond and prior to the second bond executed in favour of the plaintiff. In the result he passed the usual mortgage decree in favour of the plaintiff but did not give any express direction therein that the plaintiff before he is allowed to sell Chapsia and Hafizpur must redeem the mortgages of 1926. The natural construction of this decree is that the appellant can sell Chapsia and Hafizpur subject to the claim of the objector as a prior mortgagee. It appears that the objector did not inform the Court that he was in possession of Chapsia and Hafizpur as auction purchaser.

In the year 1940, the appellant took out execution of the preliminary decree of the 27th of June, 1934, after it had been made final, and in execution he purchased villages Dubauli and Sundar and the other villages which were the subject of the mortgage bond of 1925 but not villages Chapsia and Hafizpur. The mortgage decree not having been fully satisfied, the appellant started the execution giving rise to the present appeal in 1943 for realisation of his dues by the sale of villages Chapsia and Hafizpur. By this time the claim of the objector on his mortgage of 1926 became barred by limitation. Brahmadeo Singh objected under section 47 of the Code of Civil Procedure that these villages cannot be sold unless the appellant deposits the entire decretal amount as fixed by the decree in the suit obtained by the objector on his bond of 1926. The learned Subordinate Judge by a short order relying upon the Full Bench case of the Allahabad High Court in Ram Sanehi Lall and a later case of Sarda Prosad v. Kanhai Lal allowed the objection. Hence the appeal to this Court.

The two learned Judges have written most elaborate and exhaustive judgments dealing with the contentions raised on behalf of the parties, and in the two judgments almost every relevant authority lies been examined.

Both the learned Judges agreed in overruling the contention of the appellant that the objection raised by the objector could not be entertained within the scope of section 47 of the Code of Civil Procedure and that the decision of the 27th June, 1934, did not operate as res judicata on the question raised by the objector. As I am in full agreement with this conclusion, which is supported by very high authorities, it is needless for me to discuss this question which was raised before me on behalf of the appellant by Mr. Jaleshwar Prasad.

It is now convenient to state where the learned Judges have taken different views. Meredith, J., has taken the view that as the integrity of the mortgage of 1926 was broken by the purchase by the objector, the sale directed by the Court in the decree of 1934 should take place in accordance with the provision of Order 34, rule 12 of the Code of Civil Procedure in this way: “The Court below should upon the objection in the first place take evidence as to the proportion which the value of Chapsia and Hafizpur bore at the date of the mortgage to the value of the entire property and in accordance therewith should work out the proportionate sum which the decree-holder must now pay for redemption of those two villages. In assessing the value of the properties at the time of the mortgage the learned Subordinate Judge must remember that the villages Dubauli and Sundar were mortgaged subject to a prior mortgage. Their value at that time would, therefore, be only anything in excess over the mortgage dues at that time on the prior mortgage, which sum should be set off in assessing their value. The decree-holder should next be allowed a suitable time to redeem the objector by payment of the amount so worked out should he care to do so. If heroes not exercise this option within the time allowed, then the Court, unless the objector satisfies the decree under Order XXXIV, rule 5, Code of Civil Procedure, should proceed to sell the two villages, but if the objector accords his consent, then the sale should be in accordance with the provisions of Order XXXIV, rule 12, and the objector should be allowed first claim upon the sale-proceeds to the extent indicated………… Should the decree-holder redeem his villages and then sell them free from encumbrances, he will be entitled out of the sale-proceeds to claim first the amount remaining due on his puisne mortgage, and, secondly, the amount which he has had to pay to redeem the prior mortgage. If after this there remains any surplus, it should go to the prior mortgagee as owner of the equity of redemption”.

Bennett, J.:— came to the conclusion that the proper course to be followed upon the appellant's decree for sale was:

“(1) The executing Court should allow the puisne mortgage-decree-holder a reasonable time within which to decide whether or not he desires to redeem the prior mortgage either as to the whole or as to villages Chapsia and Hafizpur only.

(2) If the puisne mortgagee decree-holder elects to redeem the prior mortgage the Court should proceed to take an account of and fix the amount to be paid into Court by the puisne mortgagee. If he elects to redeem villages Chapsia and Hafizpur only, this sum will be that proportion of the full mortgage debt plus interest as above defined which the value of villages Chapsia and Hafizpur at the date of the prior mortgage bore to the value at that date of the entire mortgaged property exclusive of villages Dubauli and Sundar.

(3) Having ascertained this amount, if necessary, the Court will fix a reasonable time within which the puisne mortgagee must deposit the amount in Court.

(4) If the puisne mortgagee elects not to redeem the prior mortgage or if he fails to deposit this amount, within the time fixed, the execution petition will be dismissed with costs.

(5) If the puisne mortgagee deposits the money within the time so fixed, the Court should then allow the prior mortgagee a reasonable time within which to elect whether or not to redeem the puisne mortgage and, in the former event, within which to deposit the amount thereof, that is to say, the decretal amount plus interest, if any, to date, in Court. If that is done, the puisne mortgagee will be entitled to withdraw the amount and that will be an end of the matter. If, however, the prior mortgagee elects not to redeem the puisne mortgage or fails to deposit the money within the time allowed therefor by the Court then the puisne mortgagee will be entitled to an order for the sale of the mortgaged properties the subject of the prior mortgage, either as to the whole exclusive of villages Dubauli and Sundar or as to the two villages Chapsia and Hafizpur, as the case may be, free from the encumbrance thereof, and the prior mortgagee will be entitled to withdraw the redemption monies deposited by the puisne mortgagee.”

I have considered the matter very carefully and have perused all the cases cited by the learned Judges in their judgments and have read and considered a number of other cases bearing Upon the point including the relevant passages from Dr. Ghosh on Mortgage and Jones on the Law of Mortgages.

To begin with, it must be emphasised that in the present case we are not concerned with the form of the decree which should have been passed in the suit instituted by the appellant. Our function is only to construe that decree and to adjust the equities between the parties.

The proper decree that should be passed in such circumstances was pointed out by their Lordships of the Judicial Committee in Md. Ibrahim Hussain's case, that is to say the decree for sale should have dealt with the rights and claims of the objector in relation to the prior mortgage of 1926, the appellant being allowed to redeem the mortgage of 1926 and the objector would in his turn have been allowed to redeem the plaintiff's mortgage.

The case of Sukhi v. Ghulam Safdar Khan is to the same effect and decides that where a prior mortgagee having obtained a decree under Order 34 is sued by the puisne mortgagee whom he has not joined in the former suit, he is entitled to use his prior mortgage as a shield and to have the discharge of his decree made a condition of the sale decree in favour of the puisne mortgagee.

In these two well-known cases of the Privy Council and in several other cases which have been cited in the judgments of the learned Judges, and some of which have been noticed in the judgment of the Oudh Judicial Commissioner's Court in Pandit Suraj Kishan the form of the decree which should be pronounced in a case like the present is indicated. See also Mt. Dhanwanti.

But in the present case, the Court pronounced a decree in a different form and directed the sale of the villages Chapsia and, Hafizpur. The objector did not and could not put forward the previous mortgage of 1926 as a shield because on the date of judgment the suit to enforce the mortgage had not become time barred. By the judgment the position of the defendant was clarified that he was a prior mortgagee with regard to these two villages. The decree, therefore, is an ordinary decree for sale of these two villages subject to a prior encumbrance of 1926.

The situation, however, has now altered by reason of the fact that when the execution under consideration was started, the suit to enforce the mortgage of 1926 had become time barred, and, therefore, the objector now seeks to put forward the mortgage of 1926 as a shield as he is in possession of these two villages as the result of a sale in execution of his mortgage decree.

The problem, therefore, to solve is, how to work out the equities between the parties without contradicting the direction of the Subordinate Judge in the judgment and decree of 1934.

Four solutions consistent with the case-law and general principles suggest themselves.

The first is that the appellant decree-holder must be directed to redeem the objector—the exact amount of redemption will be considered hereafter—and upon this being done he should be allowed to sell the two villages and the sale-proceeds to be utilised in the first instance to recoup him for the amount paid by him for redemption; it is unnecessary to provide that the objector has a right to redeem the appellant-decree-holder because such rights are available to him before the confirmation of the sale under Order 34, rule 5.

The second is that the appellant should be allowed to sell the two villages subject to the mortgage of 1926.

The third is that action should be taken in accordance with Order 34, rule 12 of the Code of Civil Procedure, and if the objector consents, the property should be sold free from the mortgage provided that the amount recovered first goes to satisfy the prior mortgagee to the extent of the amount of redemption and the balance goes to satisfy the puisne mortgagee appellant.

The fourth is that the appellant should be allowed to sell the two villages, but the auction purchaser will not be allowed to take possession of those two villages unless he deposits the amount of redemption.

The first solution does not appeal to me for two reasons. Firstly, because there is no direction for redemption in the decree under execution, and secondly, because nobody can be forced to redeem unless he asks for it, and the appellant did not make such a prayer to the Court which passed the decree. The right of redemption is an equitable right which can be availed of by a person if he likes, but cannot be forced upon him. See the observations of the Privy Council in Bijai Saran Sahi. For these reasons, I disagree with both my learned colleagues that the plaintiff must not be given an opportunity to redeem the objector, and I certainly do not agree with Bennett, J., that if the appellant does not choose to redeem, his execution should be dismissed, as this would be setting aside the decree under execution which in terms directs the sale of the two villages.

The second solution is obviously inequitable and must be discarded. The claim on the mortgage of 1926 has now become barred by time. In this I am in full agreement Math my two learned colleagues.

The third solution is not available here because the objector in his objection under section 47 has not asked that recourse should be taken to the provisions of Order 34, rule 12 and has not given his consent that the property should be sold free from encumbrance. On the other hand his objection is that the property cannot be sold unless he is redeemed in full. But the sale of the properties has already been ordered by the decree under execution and that sale must take place, and the executing Court cannot go behind that decree for sale.

Having considered the matter, I think that the equitable rights of the parties in this particular case where the Court is not passing a sale decree [as was the case in Sukhi v. Golam Safdar Khan and other similar cases] but where the Court is executing a decree for sale already ordered, can be fully worked out and can only be worked out if the fourth solution is adopted, and I would order accordingly.

What then is the amount which should be paid by the auction-purchaser before he can dispossess the objector from the two villages? The position has been clearly and lucidly explained by Meredith, J., in his judgment, namely that on account of the purchase by the objector before 1933 the integrity of the mortgage of 1926 has been broken, and, therefore, the objector is entitled to be paid the proportionate amount of the mortgage debt of 1926 which can be allocated to fall on the two villages Chapsia and Hafizpur, and the calculation should be made in the manner rightly pointed out by Meredith, J., with interest on this amount at the bond rate up to the date of delivery of possession to the objector.

Bennett, J., after examining the provisions of section 91 and section 60 of the Transfer of Property Act held: “It is clear that Brahmadeva, by purchasing the mortgaged properties in execution of his own decree for sale, acquired ‘the share of a mortgagor’ and therefore that Raj Narain, who is interested only in the villages Chapsia and Hafizpur out of those properties, is entitled to redeem them by a proportionate payment”. But he thought that was not the whole of the matter and then proceeded to observe that the puisne mortgagee may elect to redeem the prior mortgage of 1926 either as to all the remaining properties subject to the prior mortgage or as to villages Chapsia and Hafizpur alone. With respect, I do not agree with this conclusion in full.

In a recent case decided by their Lordships of the Judicial Committee in Shah Ram Chand it has now been authoritatively laid down by considering the provisions of section 60 of the Transfer of Property Act that a mortgage must be redeemed entirely or not at all except where the equity of redemption in a portion of the mortgaged property becomes vested in the mortgagee himself and, therefore, it follows from this decision that the puisne mortgagee or the auction-purchaser in execution of the decree of the puisne mortgage will be entitled to redeem the prior mortgagee not in full but only of that portion of the mortgage debt which can be allocated to the two villages Chapsia and Hafizpur. This view was adopted by this Court in Mahadeo Rai. See also the cases of Mt. Azizunnissa, Amirchand and another Patna case Sheosaran Sahu. I may also refer here to the Oudh case of Suraj Kishan in which the matter has been clearly put by Sir Edward Chamier, who was then the Judicial Commissioner and later the Chief Justice of this Court.

The same conclusion is arrived at if the matter is looked at from another point of view. Supposing the prior mortgagee was not impleaded in the puisne mortgagee's suit, the decree of the puisne mortgagee would have been exactly in the same form in which it now stands. In that case the puisne mortgagee's right to sell granted by the decree could not be defeated by imposing upon, him a condition by the executing Court that unless he redeemed the prior mortgagee he would have no right to sell. It has been held in numerous cases that a decree obtained by a prior mortgagee or a puisne mortgagee without impleading the puisne mortgagee or the prior mortgagee, as the case may be, is not void but is a good decree even though the decree does not bind the mortgagee who was not made a party. In such cases the equities between the parties have to be worked out in the manner laid down by me above—see the interesting discussion in Sheikh Kalu Sharif, a decision by Mookherji, C.J, and Fletcher, J., where a large number of authorities will be found referred to. Supposing, the case assumes, the puisne mortgagee proceeded to sell the property and became the auction-purchaser or another person became the auction-purchaser and such person was resisted in recovery of possession by the prior mortgagee auction-purchaser, what would be the remedy of such an auction-purchaser? The remedy would be for him to bring a suit for possession against the prior mortgagee auction-purchaser and such a suit would be decreed on the terms that the auction-purchaser before he is awarded possession must redeem the prior mortgagee in possession who is entitled to use as a shield his mortgage to the extent that it extends over Chapsia and Hafizpur. Instead of driving the parties to a further litigation, section 47 entitles the Court to work out the equities between the parties and thus shorten the litigation. The view, therefore, which I have arrived at is in agreement with the view which would have to be taken if a regular suit had been brought by the auction-purchaser in execution of the puisne mortgagee's decree.

A preliminary objection was raised by Mr. Harinandan. Singh that under the provisions of section 98 of the Code of Civil Procedure I have no power to hear this appeal. But as pointed out in Debi Prasad Pande the provisions of section 98 of the Code of Civil Procedure have no application. The relevant enactment which applies is the Letters Patent of this Court. It was also said that the learned. Judges have not indicated the points on which they have differed which I am called upon to decide, but the elaborate judgments of the learned Judges clearly indicate the points of difference, and, therefore, it was agreed before me that the question for decision by me is the manner in which the sale of the two villages should be ordered to take place. Accordingly, I overrule this preliminary objection.

The result is that the appeal is allowed, the decision of the learned Subordinate Judge is set aside and he is directed to determine as indicated above the amount of the mortgage dues of the objector which fall on the two villages Chapsia and Hafizpur up to the date of the delivery of possession of the objector. After determining this amount, the Subordinate Judge will direct that the sale of these two villages should take place on a date to be fixed by him on the clear intimation to the bidders that the auction-purchaser will not be allowed to take possession of the two villages from the objector unless he pays the amount determined by the Subordinate Judge as aforesaid in Court to the credit of the objector.

Each party will bear his own costs before me also.

K.D

Appeal allowed.