1. This is an appeal by a judgment-debtor Mt. Srimati from an order in execution dismissing her objections in execution proceedings arising out of the following facts: As there have been three separate litigations it would be convenient to give the dates of each separately. On 18th February 1904 Khalilurrahman executed a mortgage deed in favour of Kumar Sen, Bansidhar and Jagannath of 5 biswas of Shahpur Bhusauri along with other properties. On 23rd August 1915 a suit to enforce this mortgage was brought by the mortgagees, impleading the representatives of the mortgagor as well as Nand Kishore, the present respondent, as subsequent mortgagee (the latter held a mortgage dated 4th June 1910 to be mentioned hereafter). Nand Kishore did not contest the priority of the plaintiffs' claim and a preliminary decree was passed on 28th February 1917. A final decree was passed on 13th January 1917. None of the defendants including Nand Kishor paid the mortgage-money and the 5 biswas share was sold at auction on 23rd July 1917 and purchased by Kumar Sen and Bansidhar according to the sale certificate filed. Jagannath apparently had died, and it is suggested on behalf of the appellant that under some private partition his rights had passed on to Kumar Sen and Bansidhar.
2. On 18th February 1904 another mortgage deed was executed by the same mortgagors in favour of Narayan Das, Ganpat Rai and Chhedan Lal of another 5 biswas share in the same village Shahpur Bhusauri. A suit to enforce this mortgage was filed on 19th August 1915 by Ganpat Rai and Chhedan Lal, impleading the heirs of Narayan Das and also impleading Nand Kishore, the present respondent. It is suggested on behalf of the appellant that the rights and interest of Narayan Das had passed to Ganpat Rai and Chhedan Lal under some private partition. Nand Kishore did not challenge the priority of this mortgage and a preliminary decree was passed on 26th May 1916. A final decree was then passed on 26th September 1916. None of the defendants including Nand Kishore paid up the mortgage money and the 5 biswas share was sold at auction on 20th September 1917 and purchased by Kumar Sen for Bansidhar according to the sale certificate. It may be mentioned in this connexion that subsequently on 31st October 1917 Nand Kishore applied to have the sale set aside, but his application was dismissed and the sale was confirmed.
3. If these facts had stood by themselves there would have been no doubt that the failure of Nand Kishore, the subsequent transferee, to pay the amount of these mortgage-decrees and the auction sales, in consequence would have passed absolute title to the auction purchasers free from all subsequent incumbrances. When a property is sold in execution of a decree obtained on the basis of a prior mortgage in a suit to which the subsequent mortgagees are parties, the only right of the subsequent mortgagees is to redeem the prior mortgage in time. If they fail to do so and the property is allowed to be sold, it is sold free from all subsequent incumbrances, with the result that the auction purchaser acquires absolute title thereto without any right in the subsequent mortgagees to enforce their claim as against him.
4. The facts however did not end in this way. As mentioned above, Nand Kishore had obtained a mortgage dead dated 4th June 1910 from the same mortgagors covering the entire 20 biswas of Shahpur, that is including the 5 biswas in each of the previous mortgagees. On 4th September 1914(even before the suits brought by the prior mortgagees) he sued to enforce his mortgage and impleaded Bansidhar Chhedan Lal Narayan Das and Ganpat Rai, i.e., one out of the three mortgagees of the first mortgage of 1904 and all the three mortgagees of the second mortgage of 1904. In his plaint he did not expressly refer to these mortgages of 1904 and did not in express language say that they did not exist or that they had no priority over his mortgage of 1910, But he did assert that he had priority and that the other defendants were all subsequent transferees or mere attaching creditors. In this way he did not impliedly admit the priority of their claims although he did not at the same time in clear language repudiate it. Bansidhar filed one written statement setting up his mortgage of 18th February 1904 as a prior claim. Chhedan Lal filed another written statement setting up his mortgage of 1904 as a prior claim, and Narayan Das and Ganpat Rai filed a joint written statement raising the same plea. Thus, two separate issues were framed by the trial Court as to the priority of these two mortgages.
5. It is a fact that neither Kumar Sen nor Jagannath was impleaded by Nand Kishore in his suit. It has been suggested on behalf of the respondent that either they were all members of the same joint family or the rights and interest of all had passed to Bansidhar. Ganpat Rai died during the pendency of the suit and his son Chhedan Lal was brought on the record in his place. While Nand Kishore's suit on the basis of the subsequent mortgage was pending, the auction purchases of 1917 in execution of the prior mortgagee's decrees to which Nand Kishore was a party took place. After those auction sales Kumar Sen and Bansidhar transferred the 10 biswas share purchased by them at the auction sales to Chhedan Lal on 7th May 1918. But owing to the gross negligence of Chhedan Lal neither the original deeds of 1904 nor copies of the decrees of 1916 and 1917 nor of the sale certificates of 1917 were produced in the trial. The learned Subordinate Judge dismissed the suit of Nand Kishore on 31st October 1918, but at the same time recorded a finding that the mortgages of 1904 had not been duly proved.
6. An appeal was preferred by Nand Kishore to this High Court in which he impleaded the same parties including Chhedan Lal. Ganpat Rai's son Chandu Lal died during the pendency of the appeal and the appeal abated as against him. Chhedan Lal also died and his daughter Mt. Srimati was brought on the record as his legal representative. Neither Chhedan Lal nor Bansidhar and others appeared before the High Court and the appeal was disposed of ex parte as against him. The learned Judges held that the plaintiff's suit should be decreed, and also directed that a statement showing the relative priorities of the various claims should be prepared and attached to the decree. They maintained the priority mentioned in the judgment of the trial Court. The appeal was decreed on 26th March 1925. A decree was prepared by this High Court in which the priorities of the various claims were set forth in detail and there was a specific recital to the effect that the two mortgages of 18th February 1904 shall have no priority as against the mortgage of Nand Kishore. Item 4 in the decree referred to the first mortgage of 1904 and items 5 and 6 referred to the second mortgage of 1904 as against Chandu Lal and Mt. Srimati. The appeal had abated against Chandu Lal and the recital as against his name was subsequently struck out. A final decree was passed by the Court below on 10th March 1927 after notice to the parties concerned and without any objection having been raised on their behalf. A belated attempt was then made on behalf of Mt. Srimati to get the decree amended by striking out the words 'that the mortgages of 1904 shall not have priority against Nand Kishore's mortgage.' This application was dismissed.
7. Nand Kishore then applied for execution of his decree and objections were filed on behalf of Mt. Srimati on the ground that Bansidhar had made purchases in execution of a prior mortgage decree from whom the objector derived title and that therefore she had a paramount claim and her share should not be sold.
8. The learned Subordinate Judge has dismissed the objections by a summary order without giving any facts and without any indication that he had appreciated the complicated nature of the previous history of this litigation. He has taken shelter under the order of this High Court dismissing the application for amendment which is not directly in point. It is therefore not at all clear what points were actually urged before him, or whether he has overlooked them, except as appears from the written objections filed in the Court below.
9. The facts stated above have been given to us by the learned counsel for the parties and the judgment has been dictated in their presence. We assume them to be accurate.
10. It will be convenient to consider whether Mt. Srimati, as a representative of the mortgagees who were parties to the suit brought by Nand Kishore, is now entitled to object to the execution of the decree. Nand Kishore had impleaded Bansidhar, one of the three mortgagees under the first deed, and all the three mortgagees under the second deed. The appeal abated against the heir of Ganpat Rai after Bansidhar had purchased the property in execution of Ganpat Rai's decrees. It is therefore clear that Ganpat Rai's heir, viz. Chandu Lal, was a mere pro forma respondent and his death does not affect the rights of the parties. Now both Bansidhar and Chhedan Lal had set up their respective mortgages as defence to the suit, and although these mortgages had not in express language been challenged in the plaint of Nand Kishore the Court; framed two clear and specific issues as to their alleged priority. For some reason best known to the parties concerned, they apparently took no steps to substantiate the plea apart from having raised it in the written statements. As mentioned above no materials were placed before the Subordinate Judge trying Nand Kishore's suit which would either formally prove the mortgages of 1904 or show that decrees had been obtained on their basis, or that auction purchases had been duly effected and the right of redemption of Nand Kishore had been extinguished.
11. In the absence of such materials the Court below and the High Court could only hold that the priority of these two mortgages was not established. The decree which was passed by the High Court clearly contained that recital. No doubt the priority of the first mortgage of 1904 was raised by Bansidhar and not Chhedan Lal, whereas the priority of the second mortgage was raised by Chhedan Lal and his co-mortgagees and not by Bansidhar, but when issues were framed all the parties to the suit had full knowledge that the question was in controversy. Owing to the negligence of the defendants concerned the Court held that the priority had not been established. It seems to us that the mere fact that Bansidhar had in the meantime purchased the mortgaged properties at auction or that he along with Kumar Sen (not a party to the suit, had transferred the same to Chhedan Lal, who was a party to Nand Kishore's suit, cannot give higher rights to Chhedan Lal so as to get rid of the effect of the decree passed against Chhedan Lal. The priority of the claims was in dispute, the property had been sought to be sold in that suit, and it was the clear duty of Chhedan Lal to see that no adverse decree was passed against him. He failed to take necessary steps to place sufficient materials before the trial Court or the High Court with the consequence that a decree was allowed to be passed against him for the sale of 10 biswas which had been previously mortgaged in 1904 and which had been purchased at auction in execution of the prior mortgagee's decrees.
12. Chhedan Lal's representative cannot now be allowed to go behind that decree in the execution department and urge that the property which the decree orders to be sold should not be sold. It was the duty of her predecessors, Chhedan Lal and Bansidhar, to raise such a plea in the suit itself which they failed to do. We wish to express no opinion whether such a plea can be raised in a separate suit.
13. As regards the interest acquired by Mt. Srimati as a representative of Kumar Sen, one of the three mortgagees under the first mortgage of 1904, the point urged before us on behalf of the appellant is that Kumar Sen not having been impleaded by Nand Kishore in his suit his prior claim was not called into question and was not the subject of controversy in that suit, and that therefore the mortgage decree obtained by Kumar Sen and the auction purchase in execution of it remained wholly unaffected by the decree obtained by Nand Kishore. Now, if it were absolutely clear that Kumar Sen had an independent and separate right of his own under the first mortgage, and if it had so happened that a third party had purchased property at auction in execution of his decree, there would have been no doubt that his rights would not have been in any way affected by the decree passed against Nand Kishore. The position is however complicated because this point was not raised in the written objections filed in the Court below where there was an implied admission that the purchase had been made by Bansidhar with out mentioning Kumar Sen, and it is suggested on behalf of the respondent that had that point bean raised he would have been in a position to show that Kumar Sen was a mere benamidar for Bansidhar, or that he was a member of the joint Hindu family, or that by private partition his right and interest had passed to Bansidhar. The point not having been raised in the Court below they had no opportunity to meet this case.
14. It is also urged on their behalf that a judgment-debtor cannot be allowed to put forward her paramount title in the execution department and claim that a property which had bean ordered to be sold under a decree passed against her is property which she had acquired under an independent title and should not be sold. The learned counsel for the respondent has also drawn our attention to the case of Sham Lal Sahu v. Amar Prasad Chaudhury  2 Pat. L.J. 219, which is no doubt a somewhat analogous case. In that case a judgment-debtor who was a subsequent mortgagee was not to be entitled to plead in the execution department his right under an auction purchase for arrears of revenue which had priority over all incumbrances, and it was held that his remedy was by a separate suit. We think that the execution Court cannot go behind the decree and allow the judgment-debtor to put up a paramount title in the execution department.
15. If we were to decide this question finally ourselves we would have had to send down an issue for determination by the Court below with liberty to both the parties to adduce fresh evidence. But we do not propose to do so because we accept the contention urged on behalf of Nand Kishore that such a plea cannot be raised in these execution proceedings.
16. On the face of it looks as if it is a hard ease for Mt. Srimati, but on the other hand it has been suggested on behalf of the respondent that under his mortgage of 1910 he had paid off certain earlier titles. In any case if she has suffered it is due entirely to the gross negligence of her own predecessor.
17. The result is that we dismiss the appeal and direct that the objector should pay the costs of the decree-holder in the Court below, but the parties should bear their own costs of this appeal.