Pramada Charan Banerji and Ryves, JJ.
1. The facts of this case are these: The appellants and their predecessors in title executed a usufructuary mortgage in favour of one Subba Rai on the 3rd of October, 1887. The mortgage was assigned to Sri Niwas Rai Kalia and others, the respondents. Part of the property mortgaged was in the possession of prior mortgagees and the mortgagors also held mortgagee rights in other property which they included in the mortgage. In regard to these two descriptions of property, it was provided in the mortgage that the mortgagors would redeem the prior mortgage and foreclose the mortgage held by them and then deliver possession to their mortgagee, Subba Rai. The mortgagors complied with the terms of the mortgage so far that they redeemed the prior mortgages and foreclosed the mortgages held by them, but they did not deliver possession to the mortgagee. Thereupon the assignees of the mortgagee brought a suit for possession and obtained a decree, which awarded them costs. In execution of the decree for costs, they have applied for attachment of the mortgaged property, that is, of the equity of redemption of the mortgagors in respect of the said property. The appellants objected to the attachment on the ground that it would contravene the provisions of Order XXXIV, Rule 14, of the Code of Civil Procedure, and that as the mortgagees are in possession under the mortgage, they are not entitled to bring to sale the mortgagors' rights. This objection having been overruled by the court below, this appeal has been preferred, and the same plea has been reiterated in the appeal. In our opinion, the decision of the court below is right. Rule 14 of Order XXXIV of the Code of Civil Procedure provides that 'where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage.' The question is whether the decree in this case is 'a decree for the repayment of money in satisfaction of a claim arising under the mortgage.' While it is contended on behalf of the appellant that as the decree for costs was passed in a suit brought in connection with the mortgage, and is, therefore, a decree in respect of a claim arising under the mortgage, it is urged, on the other hand, that the claim which the decree-holder seeks to satisfy is not a claim arising under the mortgage, but a claim arising under a decree passed for costs. In our opinion, this latter contention is correct. Rule 14 seems to us to provide for cases in which the decree-holder seeks to satisfy a claim which he could enforce by virtue of his mortgage, This rule, in our opinion, gives effect to the principle of equity referred to by their Lordships of the Privy Council in Khiarajmal v. Daim (1904) I.L.R., 32 Calc., 296 : 32 I A., 23 in the following terms: 'Their Lordships throw no doubt on the principle, which has been acted on in many cases in India, that the mortgagee cannot, by obtaining a money decree for the mortgage-debt, and taking the equity of Redemption in execution, relieve himself of his obligations as mortgagee, or deprive the mortgagor of his rights to redeem on accounts taken, and with the other safeguards usual in a suit on the mortgage.' In the present case the suit which the decree-holders brought was no doubt a suit relating to the mortgage, but the costs awarded were costs which could only be realized by virtue of the decree made by the court and the claim for the costs is not a claim which arose under the mortgage. The case is in some respects similar to that of Muhammad Abdul Rashid Khan v. Dilsukh Rai (1905) I.L.R., 27 All., 517. The learned Counsel for the appellants also urged that under the terms of the mortgage deed the costs in question might be regarded as part of the mortgage money. We have considered the terms of the mortgage, and it is clear that the costs referred to in that document are costs relating to the redemption of prior mortgages or to the obtaining of mutation of names in respect of the mortgaged property which the mortgagees might incur as against third parties or in making applications themselves for entry of their names. This document does not contemplate costs of the description of costs now sought to be realized. The costs incurred by a mortgagee which might be deemed to be a part of the mortgage money are the costs referred to in Rule 10 of Order XXXIV, i.e., the costs of a suit for a decree for foreclosure, or sale or redemption. The costs awarded in the present case are not costs of this description, and therefore they could not be deemed to be a part of the mortgage money which the mortgagees were entitled to realize from the mortgaged property.
2. Whether the mortgagees should be permitted to bid for and purchase at the sale to be held in execution of their decree, is a matter which the court executing the decree should consider in the event of the mortgagees applying for leave to bid, but in our opinion, their prayer for sale of the mortgagor's rights in, the mortgaged property has been rightly allowed, and this appeal must fail. We accordingly dismiss it with costs.