1. The original mortgagor-judgment-debtor, Sabastian D'Cruz, is the appellant here, being aggrieved by the Order of the Assistant Judge, Poona confirming the order of the Darkhast Court in the darkhast filed by one Vardichand Ramchand & Co., who was the second mortgagee. The appellant D'Cruz had mortgaged his house property to one Shripad Deodhar, the first mortgagee, Respondent Nos. 1 to 4 are his heirs. The appellant subsequently executed the second mortgage in favour of one Vardichand, who is respondent No.5. T he first mortgagee Deodhar filed Civil Suit No. 126 of 1954 against the appellant. The second mortgagee Vardichand was not made a party to the suit. The first mortgagee obtained a decree in his favour. The second mortgagee Vardichand also filed in that year another suit being Civil Suit No. 357 of 1954 against the mortgagor. The second mortgagee did not make the first mortgagee a part to the suit.
2. The first mortgagee, Deodhar, filed the execution proceedings against the original mortgagor and requested for sale of the mortgaged property. The mortgaged property was sold in the execution proceedings and the first mortgagee Deodhar purchased the suit property in auction. The second mortgagee, Vardichand then filed the present Darkhast for the purpose of executing his decree. He joined the first mortgagee, Deodhar as a party in the Darkhast proceedings. We are concerned here with the second mortgagee's Darkhast proceedings. The first mortgagee Deodhar objected to their being joined as party to the Darkhast. Later during the course of the Darkhast proceedings the first mortgagee gave a purshis and offered to redeemed the mortgage of the second mortgagee and in the alternative also prayed that if the second mortgagee Vardichand was ready and willing to redeem their mortgage, then they would be satisfied. The second mortgagee Vardichand, however, informed that he was not willing to redeem the mortgage of the first mortgagee Deodhar. The Darkhast of the second mortgagee, therefore, proceeded. The Darkhast Court held in the execution proceedings on 3-7-61 that the right of the first mortgagee to redeem the second mortgage subsists in spite of the Court's sale and his purchase of the mortgaged property. According to him the question of redemption would come at the time when the auction-purchaser wants possession of the mortgaged property on the strength of the sale certificate. He, therefore, held that the first mortgagee who had become the auction-purchaser in the execution proceedings property. It was also held that the first mortgagee continued to be the mortgagee qua the second mortgagee despite the auction sale in which the prior mortgage was a purchaser. The property, therefore, was ordered to be put to sale subject to the encumbrance of the first mortgagee.
3. The first mortgagee thereafter applied in the Darkhast proceedings of the second mortgagee for redemption of the second mortgage. Original mortgagor, D'Cruz, who is the appellant, here, objected to the application of the first mortgagee stating that he alone is entitled to redeem the second mortgage. That objection was rejected by the Darkhast Court and the learned Civil Judge held after carefully considering the matter that the first mortgagee shall redeem the puisne mortgage and that the puisne mortgagee will receive the amount deposited by the first mortgagee in Court. The original mortgagor had no right to redeem. Accordingly therefore, he held that the second mortgagee Vardichand should give a statement of the exact amount due to him and that the first mortgagee should deposit the amount which can be withdrawn by the second mortgagee from the Court. There was an appeal against this order. The learned Assistant Judge, who heard the appeal, dismissed it confirming the order of the learned Civil Judge. This order is, therefore, now challenged here by original mortgagor D'Cruz who wanted to redeem the second mortgage in the Darkhast proceedings of the second mortgagee.
4. The point, therefore, that arises here for consideration is whether the order of the learned Assistant Judge neither the puisne mortgagee nor the prior mortgagee when he filed his suit against the appellant mortgagor make the other mortgagee a party to the suit. The omission to implead the puisne mortgagee does not in any way affect his rights though the first mortgagee may obtain a decree on the mortgage and the property may be sold in execution of such decree. Not only has also the puisne mortgagee the right to redeem the prior mortgagee after he has brought the property to sale but his right to sue for sale subject of course to first mortgage is not affected. If the prior mortgagee has brought the property to sale and has himself purchased it he is also entitled as assignee of the equity of redemption to redeem puisne. The right of the prior mortgage to redeem the puisne mortgagee takes priority when the prior mortgage, Vardichand's mortgage. The chase, while executing his decree, he acquires the right both of mortgagee and mortgagor. As assignee of the mortgagor he may sue to redeem the puisne mortgagee or as assignee of mortgagee's rights he may sue to redeem the puisne. The mortgagor therefor has no place and no title. The prior mortgagee therefore redeems the puisne.
5. So far as the facts and circumstances of the instant case are concerned, the prior mortgagee had brought to sale the mortgaged property and purchased it as auction-purchaser. He did not make the puisne mortgagee a party to the suit when he obtained the decree. When the prior mortgagee had brought the property to sale and had himself purchased it he is entitled as assignee of the equity of redemption to redeem the puisne mortgagee. The mortgagor has lost his right. The Courts were, therefore, right in ordering the prior mortgagee, Deodhar to redeem the puisne mortgage, Varidichand's mortgage. The present appellant who is the original mortgagor has therefore lost his right to redeem because the prior mortgagee who had purchased the mortgaged property as auction-purchaser has purchased his right to redeem the puisne mortgage. Deodhar is therefore entitled to redeem the puisne mortgage. It appears to me, therefore, that the order passed by the learned Assistant Judge is proper.
6. I am supported in the above view by the decision in Nathmal Motiram v. Nilkanth Vishnu, 34 BomLR 1519 : AIR 1933 Bom 25. There also a prior mortgaged property as purchaser in execution of the decree on his mortgage. It was held that the effect of sale was that the prior mortgagee remained in possession as holder of the equity of redemption as against the second mortgagee.
7. In the above view of the matter the appeal is dismissed with costs.
8. Appeal dismissed.