1. This appeal has arisen from a suit brought by the plaintiff-respondent for recovery of a certain sum of money which came into the appellant's possession in the following circumstances:
The plaintiff was a simple mortgagee under a deed of 1909 and a usufructuary mortgagee under a subsequent deed of 1913. The property mortgaged under the two was the same. The defendant-appellant was a mortgagee in respect of part of that property under a deed of 1918. The defendant's mortgage was also simple. The defendant obtained a decree for sale on foot of his mortgage and had the property mortgaged to him sold and. purchased, at any rate part thereof himself. The prior mortgagee enforced his mortgage of 1909 and had the mortgaged property sold. As a matter of fact some property is said to have been exempted, but the question is not material for the purpose of this appeal. The mortgage of 1909 was satisfied in full, and a surplus was left in Court. In the meantime, the appellant whose mortgage of 1918 was not satisfied in full obtained a decree under Order 34, Rule 6, Civil P.C. In execution of his simple money decree thus obtained he attached the surplus in Court and recovered it. The plaintiff then brought the 'Suit which has given rise to this appeal, claiming the entire sum from the defendant on the allegation that as usufructuary mortgagee under the deed of 1913 he is entitled to it. The first Court dismissed the suit on grounds which are palpably erroneous. The lower appellate Court decreed the plaintiffs' suit, but it seems to me that its conclusions though correct are not based on the right principle.
2. It is perfectly clear that the plaintiff had a prior charge under his deed of simple mortgage of 1909 on the entire property covered thereby. The surplus left after satisfaction of the mortgage of 1909 was the only security left to the usufructuary mortgagee, the plaintiff under the deed of 1913. The plaintiff was entitled to a charge on the substituted security in the shape of the surplus sale proceeds left after the satisfaction of the deed of 1909. The defendant who was the third mortgagee, could not claim any portion of that surplus before satisfaction of the mortgage of 1913, which was prior to his own. The learned advocate for the appellant contended that a usufructuary mortgagee is not entitled to a. decree for sale, and therefore the plaintiff is not entitled to recover the sale proceeds of the property to which his mortgage related. It cannot be denied that the usufructuary mortgagee has an incumbrance on the mortgaged property, and if such mortgaged property is converted into cash, for example, here it is acquired under the Land Acquisition Act, the encumbrance is transferred from the property originally mortgaged to the one substituted, therefor. The usufructuary mortgagee is certainly entitled to possession of the substituted security in the same: manner a is he had a right to the possession of the property originally mortgaged. This being so it was the plaintiff who is entitled to the surplus sale proceeds. The defendant withdrew it and the funds in his hand were subject to the encumbrance in favour of the plaintiff. The plaintiff is therefore entitled to recover the same from the defendant. No question in regard to the usufructuary mortgagee's right to have the mortgaged property sold arises in a case like this. He has as much right to possession of the money into which the mortgaged property has been converted as he had in regard to the property originally mortgaged.
3. The learned advocate for the appellant raised a subsidiary point. He points out that there is nothing to show that the mortgage money due to the plaintiff under the deed of 1913 is equal to or in excess of the amount drawn by the defendant. He is however not in a position to say that after the satisfaction of the usufructuary mortgage of 1913, some surplus will be left in the hands of the defendant. No such question was raised in. either of the Courts below, obviously because the amount due to the plaintiff under the deed of 1913 'exceeds the sum in dispute.
4. The appeal fails and is dismissed under Order 41, Rule 11, Civil P.C.