John Edge, Kt., C.J. and Blennerhassett, J.
1. The plaintiffs were purchasers at a. sale held in execution of a decree for money. Before that decree was executed the property which these plaintiffs purchased had been mortgaged by a deed of simple mortgage. After the plaintiffs' purchase, the mortgagee, with knowledge that the plaintiffs had purchased the rights and interests of the mortgagor in this property, brought a suit for pale under the Transfer of Property Act, 1882, and did not make the plaintiffs (or either of them) parties to that suit.
2. The mortgagees obtained a decree for sale. The property was put up for sale under the decree for sale, and was sold, and purchased by the defendants, who are appellants here. The defendants having purchased under the decree for sale sought possession. The plaintiffs, having previously obtained possession in virtue of their purchase at the sale in execution of the decree for money, brought this suit under Section 42 of the Specific Belief Act, asking in effect for a declaration that they and their interests were not affected by the suit for the sale, and by the decree for sale and the sale in execution of that decree.
3. The first Court dismissed the suit: the second Court granted the plaintiff a decree. The defendants have appealed.
4. It has been urged in appeal that the granting of a declaratory decree is discretionary with the Court, and that the Court ought not to exercise that discretion by giving a declaration, except on condition of the plaintiffs' discharging the money which was due under the mortgage. It has also been urged on behalf of the plaintiffs that the proviso to Section 42 of the Specific Belief Act applies, the contention being that the plaintiffs could have asked for substantial relief by having framed their suit as a suit for redemption; and that not having done so the proviso deprives them of their right to a declaration.
5. There can be no doubt in law that the plaintiffs were persons who, within the meaning of Section 85 of the Transfer of Property Act, had an interest in the property comprised in the mortgage, and who were known by the plaintiffs in the suit on the mortgage to have had an interest and as such should have been joined in the suit. They had in fact what is known in England as an equity of redemption. Not having been made parties to the suit in which the decree for the sale was made, the decree under Section 88 and the order for sale made under Section 89, the sale and the subsequent proceedings could not in law bind or affect the plaintiffs or their interests, as they were not parties.
6. As to the two points which were urged on us in this appeal, we are of opinion that the plaintiffs were not bound either to tender the mortgage money, or to offer to redeem, or to frame their suit as a suit for redemption, and that their not having done so does not deprive them of their right to a declaration. The plaintiffs do not seek possession; they have got it. All they seek is to have their title cleared from the cloud which has been put on it by the decree for sale and the sale under that decree. For all we know, they may have some defence to a suit on the mortgage. This is not at all similar to that class of cases in which a Hindu or Muhammadan heir seeking to avoid a sale by a person purporting to act as guardian, but not having power, is bound to make restitution of the money advanced which has been employed for his benefit or for the benefit of his property.
7. A similar point as to the application of the proviso to Section 42 of the Specific Belief Act was practically settled by the Full Bench judgment in the case of Bhawani Prasad v. Kallu I.L.R. 17 All. 537.
8. We dismiss this appeal with costs.