Ryves and Gokul Prasad, JJ.
1. The facts which have given rise to this appeal are as follows: Daya Ram made a mortgage of two properties to Jia Lal, now represented by the defendants, on the 1st of October, 1875. He made a second mortgage of one of the properties to Durga Prasad, now represented by the plaintiff, on the 8th of September, 1877. On the 28th of November, 1878, Durga Prasad sued on his mortgage, without impleading Jia Lal, the prior mortgagee, and obtained a decree for sale. In execution of this decree he purchased the property on the 20th of June, 1879, and on the 29th of July, 1891, he obtained formal possession.
2. On the 15th of March, 1889, Jia Lal, the prior mortgagee, brought a suit on his mortgage, but did not implead the puisne mortgagee, Durga Prasad, in the suit. He obtained a decree and in execution of his decree purchased the property on the 20th of February, 1891, and, later on, obtained possession. The position of affairs on that date was that the prior mortgagee had purchased the property without impleading the puisne mortgagee auction purchaser, and thus the rights of the puisne mortgagee, Durga Prasad, to redeem the prior mortgage of Jia Lal remained unaffected. In other words, the title obtained by the two auction purchasers remained defective. Jia Lal was liable to be redeemed by Durga Prasad, and Durga Prasad was under a liability to pay off Jia Lal before he could obtain an absolute title to the property.
3. On the 5th of June, 1916, Durga Prasad made a gift of the property to Priya Lai, plaintiff, and on the 23rd of January, 1919, Jia Lai's son, Champa Ram, sold the property to Babu Lal. The present suit was then brought by Priya Lal, the representative of the puisne mortgagee, to redeem the prior mortgage of 1875 against Babu Lal, the representative in interest of the prior mortgagee auction purchaser. He further claimed mesne profits on the ground that the mortgage had been satisfied by the usufruct. The defence pleaded was that the plaintiff had no subsisting right to possession. It was also contended that Durga Prasad had no right to sue without payment of the prior mortgage and therefore the decree of Durga Prasad was altogether null and void, and that the present suit was barred by time. They claimed the entire amount of the mortgage and interest and contended that the claim for mesne profits was improper. Babu Lal defendant further pleaded that he and his predecessor had been in adverse possession for more than twelve years and the claim was barred by twelve years' adverse possession. He denied the liability to pay mesne, profits and contested the correctness of the amount claimed by the plaintiff.
4. The learned Subordinate Judge, before whom the case came on for hearing, decreed the plaintiff's claim for redemption on payment of the amount due but dismissed the claim for mesne profits. The defendant Babu Lal went up in appeal and the learned District Judge has allowed the appeal and dismissed the plaintiff's claim as being barred by time.
5. The plaintiff comes here in second appeal and his first contention is that the suit is not barred by time, because, the plaintiff being no party to the suit by the prior mortgagee, the decree in that suit is not binding on him and his right to redeem the prior mortgage had not ceased to exist, and the relationship of a puisne mortgagee and a prior mortgagee still subsists between them, and as such the plaintiff is entitled to redeem the prior: mortgage and thus to remove the defect in his title to tire property. This point has not been the subject of any direct decision, but on principle we think that the plaintiff is right. We have been referred to several cases in this connection, but the case which seems to be most in point is the case of Babu Lal v. Jalakia (1916) 14 A.L.J. 1146. That was a converse case. In that case there was a contest between two auction purchasers in. execution of mortgage decrees, to none of which the other mortgagee was a party. The suit was by the purchaser in execution of the prior mortgage decree to compel the defendant to redeem his prior mortgage, and, in case of default by the defendant to do so, for possession of the property. The matter has been fully discussed in the judgments pronounced in that case and we cannot do better than to refer to the discussion of this question by Lindsay, J., at page 1156 of the report: 'It seems clear to me that the rights of the parties are not to be determined solely upon a consideration of the rights which accrued to the first and second mortgagees under their respective mortgages. In each case there has been a decree on the mortgage followed by a sale of the property and in each case the parties have by virtue of their respective purchases obtained qualified titles to the property, the nature of which must be examined for the purpose of awarding possession. It is, I think, impossible to ignore the fact that these sales have taken place and to deal with the matter in issue as if they had not in fact occurred. The title of either party is immediately traceable to his purchase in execution, and reference to the rights under the mortgages is only necessary for the purpose; of ascertaining the equities existing between them; each has an imperfect title acquired by purchase and we have to determine which has the stronger equity in his favour. As for the title of the plaintiff it cannot, I think be argued that she acquired nothing under her purchase. It will not, I imagine, be denied that had she joined the subsequent mortgagee as a defendant in her suit, she would by her purchase; have acquired an absolute title to the property including the right to possession. To what extent then is her title detective by reason of her omission to implead the puisne mortgagee? Only to the extent that her title as owner is qualified by the right of redemption which was vested in the second mortgagee and which has now passed to the appellant as purchaser under the decree obtained on the second mortgage.
6. 'That is the only right which the second mortgagee could have enforced against her as prior incumbrancer, for the right of the subsequent mortgagee to bring the equity of redemption to sale to satisfy his claim is a right which is exercised against the mortgagor only. The right of the first mortgagee to have the property sold is in no way affected by the second mortgagee's right of sale. As between the first and second mortgagees (or their representatives) the only right of the latter is one of redemption.
7. 'As for the title of the auction purchaser under the second mortgage, that, too, is circumscribed by the liability to redeem the earlier mortgage. The title could only become absolute by a discharge of the prior incumbrance.'
8. As we have already stated, the relationship of mortgagor and mortgagee still subsists between the parties and there is no rule of law which prohibits the suit for redemption. The question of twelve years' rule of limitation does not arise. Article 148 of the Limitation Act of 1908 provides a period of sixty years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged, and the present suit is such a suit. In our opinion the decree of the court of first instance was a right decree and should not have. been disturbed. We therefore allow this appeal, set aside the decree of the lower appellate court and restore that of the court of first instance with costs in all courts.