1. This is a plaintiff's appeal arising out of a suit for recovery of possession of 4 3/4 biswas share in village Pachheli Daranagar which originally belonged to Ahmad Hussainand Mohammad Hussein. In 1871 the mortgagors executed a simple mortgage-deed in respect of this property in favour of Sher Singh. In 1878 they made a second mortgage of this very property in favour of Itwari Lal. In 1885 Sher Singh brought a suit for sale on the basis of the previous mortgage-deed of 1871 and obtained a decree. Unfortunately he did not implead the subsequent mortgagee Itwari Lal. The property was put up for sale and was purchased at auction by Sher Singh himself and he appears to have obtained delivery of possession but, at any rate, his name is found to have been entered in the revenue papers in 1885. It is an admitted fact that by a partition award Sher Singh's son, Bijai Singh, alone got this entire property allotted to him and he obtained possession of it and got his name entered in the khewat.
2. One Ram Ratan Lal appears to have had a simple money decree against Bijai Singh and in execution of that decree attached the rights and interests of Bijai Singh and put up the property itself for sale. There was not mention made at the time of any mortgagee's interest which Bijai Singh might have had. The property was purchased at auction by Niranjan Singh who appears to have obtained delivery of possession. The dakhalnama of the year 1903 executed by the auction-purchaser is on the record. In 1911 the representatives of the subsequent mortgagee Itwari Lal brought a suit for sale on the basis of the mortgage-deed of 1878. They impleaded Niranjan Singh who was in one sense representing the prior mortgagee and also the mortgagors. Niranjan Singh set up his right to hold up the previous mortgage as a shield and the Courts appears to have found that this prior mortgage-deed existed and that the rights under it had devolved on Niranjan Singh. It is unnecessary for us to express any opinion whether the auction-purchase by Niranjan Singh of the rights and interests of Bijai Singh unnecessarily passed to him the lien which Bijai Singh might have held to retain possession until his previous mortgage was paid off. The claim was decreed subject to the previous mortgage of 1871 held by Niranjan Singh. It appears that Niranjan Singh at that time did not insist that the property should be sold free from the mortgage and that the sale proceeds should be utilised in the first instance towards the payment of the previous mortgage. Nor does it appear that Niranjan Singh thought it fit to redeem the subsequent mortgage in favour of Itwari Lal and retain possession of the property. The result was that the property was sold at auction and purchased by defendant Ram Lal who obtained delivery of possession through the civil Court against all the defendants to the suit, including Niranjan Singh. The present plaintiffs waited for nearly 12 years and then brought the present suit for recovery of possession of this property against Ram Lal. That claim has been dismissed by the Court below and the finding is challenged in appeal before us.
3. The learned advocate for the plaintiffs-appellants contends before us that Niranjan Singh acquired all the rights which Bijai Singh had to hold on possession of the property until the first mortgage was paid off and that the sons of Niranjan Singh are entitled to recover possession of the property from the subsequent purchaser, Ram Lal, unless he is prepared to pay off their mortgagee. In our opinion it is quite clear from two Full Bench cases of this Court, namely Nannu Mal v. Ram Chancier : AIR1931All277 and Ram Sanehi Lal v. Janki Prasad : AIR1931All466 , that the right to hold up a prior simple mortgage as a shield can be exercised only by a defendant in possession of the property and cannot be used as a weapon of attack by a plaintiff, who is not in possession at the time of the suit. Furthermore, the cases before the Full Benches were where neither of the mortgagees had been impleaded in the suits brought by the others. In the present case Niranjan Singh was actually impleaded by the subsequent mortgagee in his suit and the decree was obtained against Niranjan Singh and the property was sold at auction against him. He is accordingly bound by the proceedings in that suit.
4. We think that Niranjan Singh might either have availed himself of the provisions of Order 34, Rules 12 and 13, and claimed that the property should be sold free from his encumbrance and that his amount should be paid to him in the first instance, or he might have redeemed the subsequent mortgage and prevented the sale of the property. By allowing the property to be sold against him he lost his right of redemption, Not having availed himself of either of these rights and having merely rested content with the sale of the property taking place, subject to his previous mortgage', he can have no remedy except that of suing on the previous mortgage provided limitation has not expired. He can claim that he has stepped into the shoes of the prior mortgagee by virtue of the previous payment and has the same rights as the previous mortgagee, but such rights cannot be exercised, after the period of limitation. The present is, however, not a suit for sale on the previous mortgage at all, but is merely a suit for recovery of possession. Such a suit in the circumstances is not maintainable. The appeal is dismissed with costs. Mr. Varma, before opening this case, assured us that the deficiency of Rupees 9-5-0 in the amount of the costs of translation and printing due from the appellants will be paid. We direct that the amount be made good within one month from this date.