Banerji and Aikman, JJ.
1. The respondents brought a suit for sale upon a mortgage of 1873 and obtained a decree for sale in 1891 against their mortgagor and against Hira Lal, the present appellant, who was impleaded as a subsequent mortgagee. At the time when that suit was brought there was subsisting on a portion of the mortgaged property a prior mortgage in favour of one Durga Prasad. Durga Prasad was not made a party to the respondent's suit. Durga Prasad got a decree upon his mortgage in 1881, but he also did not join the respondents as parties to his suit. After the respondents had obtained their decree Durga Prasad put his decree of 1881 in.to execution and caused a portion of the property mortgaged to the respondents, amounting to one-sixth of 10 bighas, to be sold and Hira Lal purchased it. The respondents having applied for an order absolute for sale under Section 891 of Act No. IV of 1882, Hira Lal objected to the one-sixth share out of 10 bighas being ordered to be sold in satisfaction of the respondent's mortgage decree on the ground that he had acquired priority over the respondents in respect of that portion of the property by virtue of his auction purchase under the decree of Durga Prasad obtained on a mortgage of a date prior to that of the respondents. The Court of First Instance allowed his objection, but on appeal the Lower Appellate Court overruled it and ordered the sale of the share which formed the subject-matter of the objection. Hira Lal has preferred this second appeal, and the first plea urged on his behalf is that no appeal lay to the Lower Appellate Court.
2. The plea was founded on the argument that Hira Lal in objecting to the sale of the share referred to above was doing so, not in his character as judgment-debtor to the decree obtained by the respondents, but as a third party who was the auction purchaser in execution of a decree under a prior mortgage. We are unable to sustain this objection. This case comes within the principle of the Full Bench ruling in Seth Chand Mal v. Durga Del I.L.R. 12 All. 313.
3. We think, however, that the second plea taken in appeal must prevail. Hira Lal having purchased the property in question in execution of Durga Prasad's decree under his prior mortgage, stands in the shoes of Durga Prasad. It is true that the respondents were not parties to Durga Prasad's. suit, and are therefore entitled to redeem Hira Lal, but that circumstance will not entitle them to treat the decree as non-existent and to bring the property to sale free from the prior incumbrance in favour of Durga Prasad. As they also did not make Durga Prasad a party to their suit, and did not redeem Durga Prasad's prior mortgage, that mortgage must be taken to be a, subsisting mortgage as against them. According to the ruling of the Full Bench in Mata Din Kasodhan v. Kazim Husain I.L.R. 13 All. 432, a subsequent mortgagee is not entitled to bring the mortgaged property to sale subject to a prior mortgage. Therefore the respondents cannot sell the property in question subject to the prior mortgage of Durga Prasad. On this part of the case the Lower Appellate Court did not arrive at a right conclusion. The case stands thus: The respondents are not entitled to sell the property in question free from the prior mortgage of Durga Prasad, and they are not entitled to sell it subject to that mortgage. Therefore they are not entitled to sell it at all under the decree obtained by them. On this point we must set aside the judgment of the Lower Appellate Court, As that Court did not decide the other questions raised, we remand the case under Section 562 of the Code of Civil Procedure to that Court with directions to readmit it under its original number in the register and to dispose of it according to law. The appellant will have his costs of this appeal.
1. Section 89: If in any case under section eighty-eight the defendant pays to the plaintiff
or into Court on the day fixed as aforesaid the amount due
Procedure when defend- under the mortgage, the costs, if any, awarded to him and such
ant pays amount due. subsequent costs as are mentioned in section ninety-four, the
defendant shall (if necessary) be put in possession of the mort-
gaged property; but if such payment is not so made, the plaintiff or the defendant as the
case may be, may apply to the Court for an order absolute for sale of the mortgaged property,
and the Court shall then pass an order that such property,
Order absolute for sale. or a sufficient part thereof, be sold, and that the proceeds of the
sale be dealt with as is mentioned in section eighty-eight; and
thereupon the defendant's right to redeem and the security shall both be extinguished.