1. This is a defendant's appeal arising out of a suit brought by the plaintiff-respondent for enforcement of a mortgage deed executed by respondent 2, Mathura Prasad, by sale of the mortgaged property. The appellants are subsequent transferees. Both the Courts below have decreed the plaintiff's suit. Hence this appeal.
2. The only ground pressed in appeal is that the plaintiff omitted to mention the mortgage now in suit in an earlier suit based on a subsequent mortgage, and he is therefore precluded from enforcing the mortgage which ought to have been, but was not, mentioned. This question does not seem to have been raised and argued in the Courts below. The judgments of the two Courts are silent on that point. We do not however wish to base our judgment solely on that aspect of the matter. We think the contention must fail on its merits.
3. A puisne mortgagee is not bound to implead a prior mortgagee, subject to whose encumbrance the mortgaged property can be sold in enforcement of the subsequent mortgage, We fail to understand why it is necessary for the subsequent mortgagee to declare prior encumbrances in favour of third persons or himself. Reliance is placed on the judgment of Ashworth, J., in Ram Saran v. Abdul Ghaffar A.I.R. 1928 All. 278. The learned Judge has expressed himself in an obiter dictum as follows:
Where a person holds two mortgages over the same property, he cannot sue on the first mortgage alone without forgoing the second mortgage. He can however sue and sell on a second mortgage, provided that he declares the existence of the first mortgage and has it entered in the sale proclamation.
4. The learned Judge has quoted no authority, statutory or otherwise, in support of his view, nor is it clear whether an omission to declare the prior mortgage will in his view, preclude the mortgagee from suing on foot of such prior mortgage. The learned Judge apparently had in mind the necessity of prior encumbrances being mentioned in the sale proclamation. We do not think he intended to lay down that if a subsequent mortgagee did not have his prior mortgage specifically mentioned in the sale proclamation drawn up in execution of a decree passed for enforcement of a subsequent mortgage, the prior mortgage is extinguished or that the mortgagee's remedy is barred. We are satisfied that the contention put forward before us has no force. The appeal is dismissed with costs.