Stuart and Gokul Prasad, JJ.
1. The only question in this appeal is whether the plaintiff respondent, who is the purchaser of the property in dispute under a prior mortgage decree, to which the defendants appellants were ho parties, has a right to eject the defendants, the purchasers in execution of a decree, based on a puisne mortgage, to which the prior mortgagees were no parties. It appears that in the year 1910 the second mortgagees obtained a decree on foot of their mortgage for sale of the property and purchased the property on the 20th of April, 1912, in execution of such decree. To this suit the prior mortgagee was not made a party. In the year 1916 the prior mortgagee got a decree for sale on foot of her mortgage, but to this suit neither the puisne mortgagee nor ih.2 purchaser in execution of his decree were made parties. The prior mortgagee got a decree and put the property to sale and, in execution thereof, purchased it herself. She has obtained possession over three-fourths of the property and has not got possession over one-fourth, which is in the possession of the defendants.
2. She brought the present suit for recovery of possession of the remaining one-fourth also, and, in the alternative, for a conditional decree that the defendant should redeem her mortgage, and in case of his failure to do so, she should be put in possession of the property in dispute.
3. The first court partially decreed the suit. The learned District Judge in appeal has passed a decree in favour of the plaintiff, to the effect that the defendant should redeem her by paying the sum of Rs. 1,640-13-0, and in case of his failure to do so within six months, possession of the property should be delivered to the plaintiff.
4. The defendant comes here in second appeal and the contention, raised on his behalf by his learned vakil is that such a suit is not maintainable. This contention is fully covered by an authority of this Court in Madan Lal v. Bhagwan Das (1899) I.L.R. 21 All. 235. That case is on all fours with the present case and this appeal must therefore be allowed on the ground that the plaintiff has no right to possession of the property under the mortgage on which she bases her title. It was a simple mortgage and not possessory mortgage. The suit was misconceived and should have been dismissed. We therefore allow the appeal, set aside the decrees of the courts below and dismiss the plaintiff hi suit with costs in all courts.