Turner, Officiating C.J.
1. (After stating the facts continued):--In appeal to the Full Court several pleas are urged. It is contended that the Maharajahs' right to insist on his incumbrance on Asravi was put in issue in the suit brought by the second mortgagees and determined against him and that it cannot now be enforced. This objection proceeds on a misapprehension of the judgment pronounced in that suit. It was not there held that the Maharajah had not the right to enforce his lien, but that he could not enforce it until by bringing a suit he had obtained an order for sale, and that the second mortgagees were entitled to an order for sale subject to the first incumbrance, which a purchaser under the decree would be at liberty to discharge. The right which the Maharajah now asserts was not disaffirmed by the Subordinate Judge but declared, and a first mortgagee cannot resist the claim of a second mortgagee to bring the mortgaged property to sale subject to the first mortgage. The decree of 1875 does not therefore preclude the Maharajah from claiming to enforce his incumbrance on mouza Asravi. Nor is the claim affected by the circumstance that the Maharajah brought to sale in execution of the decree of the Revenue Court the rights and interests of Musammat Lalta Bibi in Asravi. All that was then sold was the equity of redemption, which was sold to satisfy the money-decree held by the Maharajah. No doubt the proceeds of the sale would after satisfaction of the costs of the decree go pro tanto for the satisfaction of the sums secured by the first incumbrance, but the Maharajah by selling in execution the mortgagor's equity of redemption did not forego his incumbrance.
2. It must be admitted that some issues were left undetermined by the judgment of His Honour the Chief Justice. It is clear that the power-of-attorney did not warrant the hypothecation of the house in Naini and the claim to bring to sale this property must be dismissed. The decree then must in any case be limited to the sale of mouza Asravi. An oral objection was taken to this part of the claim that there was no consideration for the execution of the surety-bond, seeing that the bond was executed on the 4th July 1870, whereas the lease had been executed on the 11th May 1870. But the circumstance that the two documents were not executed on the same date does not necessitate the conclusion that the execution of the one was not the consideration for the execution of the other. It is not always convenient for the several parties to assemble at one place and at one time. We see no reason to doubt that the lease would not have been executed except on the understanding that the surety-bond was in fact given in consideration of the execution of the lease. It was a part of the original contract for the lease that a surety should be procured and the Musammat consented to be the surety. It remains to be determined for what sums the incumbrance may be enforced. It is contended that the costs incurred in the Revenue Courts cannot be recovered. This plea must be allowed, for there is no stipulation in the bond to provide for the payment of such costs. It is again contended that the Maharajah cannot claim to recover in this suit interest on the arrears decreed by the Revenue Court, but the bond does provide for the payment of interest and therefore this plea must be disallowed. Lastly it is contended that the claim for the arrears decreed on the 24th September 1872, should be reduced by the amount recovered by the sale of the equity of redemption. On the part of the Maharajah this claim is resisted on the ground that the decree obtained by him in the Revenue Court was a nullity inasmuch as that Court had no jurisdiction to entertain a suit against the surety. At the time the suit was brought it had not been ruled that the Revenue Court could not entertain such suits. It may, however, be assumed that, had the surety appealed, the decree obtained against her in the Revenue Court would have been set aside. It may also be allowed that a sale under a decree which on the face of it has been passed without jurisdiction is voidable. Whether a sale would be set aside at the instance of the person who had procured it is open to question, but in fact the Maharajah did not disavow the sale nor were any proceedings taken to set it aside. The Maharajah took possession and realised profits until he was ousted by the purchasers under the second mortgage. The sum realised by the sale must then be applied, firstly, to the satisfaction of the costs incurred in the suit in the Revenue Court, and the balance will go in reduction of the arrear sued for in that suit, or the balance of that arrear, and for the arrear sued for in the second suit with interest at the rate agreed from the date of the accruing of the arrears respectively until realisation. The Maharajah is entitled to an order for the sale of Asravi unless in the meantime the second mortgagees bring into Court the amount found due together with the balance of costs which may be due to the Maharajah in the present proceedings. The residue of the claim should be dismissed. Each party will pay and receive costs in all Courts in proportion to the amount of the claim decreed and dismissed: the costs of the second mortgagees being estimated in respect of the claim to bring to sale Asravi and the costs of the Musammat being calculated on the value of the house in Naini. The decree of the Division Bench will be modified accordingly.
4. Having reheard the arguments in this case, I modify the opinion expressed in my former judgment, and concur in the order proposed by my colleagues.