1. This is a Letters Patent appeal by the plaintiff Earn Dao Ram against a judgment of a learned single Judge of this Court dismissing his appeal. The circumstances are that Zalim Singh obtained a final mortgage decree on 6th March 1914 and to that mortgage decree Mr. Coombs was a party as being a subsequent mortgagee. Zalim Singh then transferred his rights as decree-holder to Earn Deo Earn on a date which is not mentioned. The proper procedure for the plaintiff Earn Deo Earn under Order 21, Rule 16 would have been to have a notice issued to Mr. Coombs as one of the judgment-debtors of the transfer and the rule states:
The decree shall not be executed until the Court has heard their objection if any to the execution.
2. But in the present case it is admitted that the plaintiff only had notice issued to the original mortgagor and no notice was issued to Mr. Coombs, the subsequent mortgagee. In execution proceedings the property was put up to auction sale on 20th September 1923, and was purchased by the plaintiff. Mr. Coombs was in possession of two-thirds of the property as a usufructuary mortgagee, and when the plaintiff attempted to obtain possession of the property Mr. Coombs resisted his possession. The plaintiff was not satisfied with the entry made by the revenue Court, and the plaintiff came to the civil Court with a suit for possession on his auction purchase. The Court of first instance decreed possession to the plaintiff on payment of Rs. 150 to Mr. Coombs as redemption money for his usufructuary mortgage. The lower appellate Court dismissed the suit holding that the execution proceedings were altogether void owing to the failure to issue notice to the subsequent mortgagee. That decree has been upheld by the judgment of the learned single Judge of this Court.
3. Some rulings have been quoted by the learned single Judge, but it is admitted by the learned counsel on both sides that there is no ruling which deals with facts precisely similar to the present case. In the present case notice was issued to one judgment debtor but not to the other. In the rulings notice was not issued to any judgment-debtor at all. The question, therefore, is whether the auction sale should be held to be valid as against the mortgagor who did receive notice or whether it should be held to be altogether invalid. We consider that the mere fact that notice was not issued to the subsequent mortgagee is not sufficient reason for holding that the auction sale was invalid as against the mortgagor. Accordingly we consider that by that auction sale the plaintiff acquired the rights of the mortgagor. In that capacity he was allowed to redeem Mr. Coombs by the first Court. It is open to Mr Coombs, as a subsequent mortgagee, to redeem the plaintiff who is also a prior mortgagee. Three weeks are therefore given to the learned counsel for Mr. Coombs to inquire from his client and inform this Court whether his client desires to redeem the prior mortgage held by the plaintiff. In case Mr. Coombs desires to redeem, he may deposit the money in the Court of first instance, and a decree for redemption will be granted to him. In case Mr. Coombs does not desire to redeem the plaintiff as prior mortgagee, it will be then open to the plaintiff to redeem the usufructuary mortgage of Mr. Coombs on payment of the principal money of Rs. 150 by deposit in the Court of first instance in this proceeding. There is no dispute in regard to the one-third of the mortgaged property of which the plaintiff has obtained possession by virtue of the auction sale.