1. This is a first appeal by defendant 1, Upendranath Basu, against a decree for sale on a simple mortgage passed by the learned Subordinate Judge of Benares. The original mortgage deed was a simple mortgage for Rs. 19,000 dated 17th January 1905 executed by two persons, Sarat Chander Bhattacharya, defendant 5 and Bishnu Shankar, the father of defendants 6 to 9, in favour of the plaintiff Kalicharan Mitra and his brother Kali Das Mitra whose estate is now represented by his widow, defendant 12, Srimati Bidut Kiran Dasi. The suit was brought by Kalicharan Mitra alone making defendant 12, his brother's widow, a party, and a decree has been passed in favour of the plaintiff to the extent of Rs. 7,421-10-6 and in favour of defendant 12 to the extent of Rs. 2,47514-10. We may say at once that it would have been a better procedure if the learned Subordinate Judge had acceded to the prayer in the written statement of defendant 12 and joined her as a plaintiff instead of keeping her as a defendant. The result has been that certain evidence elicited by her counsel in cross-examination has not been subjected to cross-examination by the contesting defendants including the appellant. There are three points taken for the appellant in first appeal: firstly that the decree of the learned Subordinate Judge is wrong in directing the marshalling of assets in favour of defendant 11; secondly that the nature of the decree is wrong; and thirdly that certain payments have been made on behalf of defendant 1 and his transferees to defendant 12 by which the entire mortgage debt due to her has been paid off.
2. We begin with the question of the marshalling of assets. The decree directs as follows:
The mortgaged house (which has been purchased by defendant 11) shall not be sold by auction as long as the whole of the remaining property mortgaged be not sold and the decree money-realized,
3. It is argued that the learned Subordinate Judge was wrong in giving the direction that the house at Benares purchased by defendant 11 Sheo Narain Gwala should not be sold at auction as long as the whole of the remaining property mortgaged be not sold. The remaining property consists of zamindari property in Patna District. None of the mortgaged property is now held by the mortgagors. The zamindari property was sold by auction-sale at which the mortgage was notified and defendant 1, the appellant, was purchaser on 23rd March 1908. On 2nd December 1914 defendant 1 made a deed of gift of part of this property to the father of defendants 2, 3 and 4 and to the father of defendants 6 to 9 and to defendant 5 and to defendant 10. In the mortgage deed 6-annas 8-gandas share of house No. 19/21 in Benares city was mortgaged, and the written statement of defendant 11 states that this share was sold at an auction-sale at some period not specified, but prior to 1908, as in a partition suit of 1908 the auction-purchaser, predecessor-in-title of defendant 11, got his share separated, and defendant 11 is now in possession of this separated portion. Defendant 11 alleges that at the sale of the share of the house by auction the mortgage of 1905 was not notified. He produced a witness Gokul Prasad to state that an inspection of the registers in the registration office did not show the mortgage. It is not clear why this was so, as the auction-sale must have been before 1908 and, therefore, the period of 12 years usually examined would show the mortgage. The simple mortgage of 1905 was in substitution of a simple mortgage of 21st June 1899, also on the share in the house and between the same parties, and both deeds were registered at Benares. The question, therefore, is whether there should be any preferential right to reserve mortgaged property from sale between two persons who are both purchasers of the mortgagors' rights in different portions of the mortgaged property. Section 56, T.P. Act, directs:
If the owner of two or more properties mortgages them to one person and then sells one or more of the properties to another person, the buyer is in the absence of a contract to the contrary, entitled to have the mortgage debt satisfied out of the property or properties not sold to him, so far as the same will extend, but not so as to prejudice the rights of the mortgagee or persons claiming under him or of any other person who has for consideration acquired an interest in any of the properties.
4. But this section does not apply to a purchaser by auction-sale as has been held in Rama Shankar Prasad v. Ghulam Husain A.I.R. 1921 All. 323 and the language of the section has been altered to make this clear. The learned Subordinate Judge relied on the ruling reported in Rodhmal v. Ram Harakh  7 All. 711 in which it was held that the equities which apply to a puisne incumbrancer in the marshalling of securities under Section 81, T.P. Act, were equally applicable to a bona fide purchaser for value, without notice, of a portion of the property the whole of which was subject to a prior incumbrance. But the contest here is between two auction-purchasers, and there can be no such equity between them and no marshalling of assets. Accordingly we allow the appeal on this point and direct that the words which have been quoted above should be expunged from the decree.
5. The second point taken by the learned counsel for the appellant was that two separate decrees had been passed one in favour of the plaintiff and one in favour of defendant 12, and that it was contrary to law to have two separate decrees in one suit. We find, however, on examination of the decree that this is not correct. The decree specifies that so much money should be paid to the plaintiff and so much money should be paid to defendant 12, and if the total of these two amounts is not paid, then the properties should be sold. In form, therefore, there is nothing objectionable in this decree.
6. The third point deals with certain payments alleged to have been made by defendant 1 to defendant 12. (Here the judgment discussed evidence and then proceeded). We have, therefore, a considerable body of evidence to prove that these payments were made, and we have the application in guardianship showing that the payments ware due from the estate of the deceased Kali Das and we have the letter of defendant 12 herself admitting that these payments were made and should be deducted from the amounts due to her. Taken together these payments exceed largely the amount decreed by the learned Subordinate Judge as due to defendant 12. Accordingly we consider that the contention of the appellant is well founded that no balance of the mortgage money is due to defendant 12. We, therefore, allow the appeal on this point also. A point was also argued by the learned counsel for the appellant in the beginning of his address that a set off should bo allowed against the plaintiff for part of these amounts which had been paid to defendant 12. But later on in his argument he admitted that authority was against him on this point. We consider that payments of this nature to one of two mortgagees into her private account cannot be considered as payments which would reduce the mortgage debt due to the other mortgagee and more so as in the present case where there was a definite separation between the two mortgagees.
7. Accordingly we allow the appeal to the extent indicated above with proportionate costs in both Courts. The decree, therefore, in favour of the plaintiff will stand in regard to the amount decreed with the exception that there will be no marshalling of assets. The decree in favour of defendant 12 is set aside. A fresh decree under Order 34, Rule 4, Civil P.C., will be prepared. Six months to pay.