R.C. Patnaik, J.
1. This is a plaintiff's second appeal from an action for recovery of possession. The decree granted to him by the trial court has been reversed by the lower appellate court.
2. One Gobinda Panda had three sons, namely. Bhima. Madhaba alias Pada and Shyamsundar. After Gobinda's death, the three brothers separated and partitioned their property. Madhaba and Shyam sold their shares to Bhima who thus became the absolute owner of 1.80 acres. For legal necessity, Bhima sold the entire 1.80 acres to the plaintiff by registered sale deed dated 4-8-1905 and delivered possession of the property sold. The plaintiff sold 1.15 acres to Balabhadra Kar and Krupasindhu Dash and retained Ac. 0.65 with him which is the subject matter of the suit. It may be stated here that Bhima us the Karta of the joint family consisting of his brother, himself and members of the family had earlier executed a simple mortgage in favour of Biswanath, defendant No. 1. On 25-11-1968, defendant No. 1 filed mortgage Suit No. 440 of 1968 for foreclosure and sale. The plaintiff, who was a transferee from the mortgagor under the registered sale deed dated 4-8-1965, was not impleaded as a party. On 20-12-1968, the mortgage suit was disposed of on compromise, the terms whereof were that the amount due on the mortgage would be paid within two months failing which final decree for foreclosure would be passed. On 12-8-1969, the final decree was passed. Defendant No. 1-mortgagee-decree-holdor launched execution case No. 181 of 1969 and in course of the execution, the property was sold on 19-8-1970 and defendant No. 1 was the auction purchaser. On 7-11-1970, he obtained the sale certificate and thereafter obtained possession. When the plaintiff was dispossessed in execution of the decree, he filed an application under Order 21, Rule 100 of the Civil P. C. The same having been rejected, the present action for recovery of possession was brought under Order 21, Rule 103 of the Code on the ground that he, a transferee from the mortgagor, not being a party to the mortgage suit was not bound by the decree of foreclosure, the sale and delivery of possession in execution. Defendant No. 1 pleaded that the plaintiff was not, a necessary party but nevertheless was hound by the decree. It was, however, averred that the plaintiff despite his knowledge of the prior mortgage obtained the sale deed from Bhima. So, he was bound by any decree that was passed against the mortgagor. The trial Court decreed the suit holding that the plaintiff not being a party to the mortgage suit was entitled to recover possession. The lower appellate court reversed the decree holding that the plaintiff was not entitled to recovery of possession without seeking to redeem the mortgage by paying the mortgage dues.
3. Mr. R.K. Mohapatra, the learned counsel for the plaintiff-appellant, submitted that the lower appellate court erred in law in refusing to follow the case of Ganga Prasad Singh v. Mt. Ganeshi Kuer, AIR 1944 Patna 119. He submitted that the plaintiff a transferee from the mortgagor who was not made a party to the suit for foreclosure could not be compelled to redeem. He could insist on remaining in possession and the remedy of the defendant No. 1 lay in instituting a properly constituted suit for foreclosure and sale.
3A. Mr. B.P. Ray, the learned counsel for respondent No. 1, contended that the plaintiff being a transferee from the mortgagor could not sue for recovery of possession alone without paying the mortgage dues.
4. In Ganga prasad's case, the title of B to 2 1/2 kathas and of M to 2 1/2 kathas was declared. The share of M was purchased by one J. J in turn sold it to one R. On death of B, his share went to P. P sold 12 1/2 dhurs to R so that r became owner of 3 kathas and 2 1/4 dhurs and sold the same to the plaintiffs. The plaintiffs also obtained possession. Before title of B to 2 1/2 kathas was declared in the suit, M had executed a mortgage of the entire 5 kathas in favour of defendant No. 1. The mortgagee-defendant No. 1 therein being unaware of the decree declaring title of B to 2 1/2 kathas instituted a suit to enforce his mortgage and the mortgaged property was put to sale. The property was purchased by defendant No. 1 and his sons and possession was delivered to them. The plaintiffs were dispossessed. Their application under Order 21, Rule 100 of the Civil P. C. having been rejected, they filed the suit for recovery of possession on the ground that they had a right to obtain possession against the mortgagee-auction- purchaser who had failed to implead them as defendants, being holders of equity of redemption, in the mortgage suit. The Division Bench of the Patna High Court reviewed the decisions of various High Courts, especially of the Patna and Calcutta High Courts and relying on passages from Jones on Mortgage and Dr. Ghosh on the Law of Mortgages in India, observed :--
'.........If the person who has been left out in the mortgage action was in possession or entitled to possession on that date as the representative of the equity of redemption or was the person in whom the equity of redemption lay in full or in part then the sale in his absence is not binding on him and he cannot be forced to redeem. He may, if he likes, institute a suit for possession only.........'
It was contended in Ganga Prasad that the plaintiffs, who were not made parties to the action, could be given an opportunity to occupy the possession which they would have occupied if they had been parties to the mortgage suit and on that date, the position which they had at that time was to redeem. Manoharlal, J. speaking for the Division Bench repelled the contention observing:--
'.........But the answer to the contention is that not only he had a right to redeem at that time but also a right to be in possession. Both these rights can only be taken away by a fresh suit to enforce the mortgage security. The remedy suggested in the argument merely forces him to redeem, which as I have shown above, he cannot be compelled to do so. He can insist on remaining in possession unless the property is sold in a properly constituted suit in his presence. It is a common ground that a suit to enforce the mortgage is now barred by limitation.........'
In an earlier paragraph, their Lordships distinguished the case of the present nature from the one 'where all that had been left out is a simple encumbrancer who at the date of the mortgage suit was not in, or entitled to possession, then only the right of redemption must be given to him. Where an auction-purchaser in such a mortgage decree sale is the plaintiff and has failed to obtain possession, no difficulty in law or in equity, can ever arise because it is he who is to blame himself if he has slept over his rights for a long time and has not enforced his possession on the foot of such a sale.'
5. This Court in the case of Sheikh Bikala v. Sheik Ali, AIR 1950 Orissa 210 agreed with the view expressed by Manoharlal, J. The lower appellate court misconceived Sheikh Bikala's case. There the puisne mortgagee was a usufructuary mortgagee and as such, was entitled to possession, but he was dispossessed by the mortgagor and he instituted a suit for sale of the mortgaged property and not for recovery of possession. So, on the date when the first mortgagee instituted his suit, he had neither possession nor was he entitled to possession. Following Ganga Prasad's case (AIR 1944 Patna 1191 it was held that a suit for possession was misconceived. Narasimham, J. considered the case also from another angle. It was found that both the mortgagees had defective title, as neither of them made the other a party to his suit. It was observed :--
'.........Thus as between two parties who have each got defective title to the property there seems to be absolutely no reason as to why the Court should dispossess a party who is already in possession............'
6. The Orissa case is, therefore, distinguishable and the lower appellate court missed the distinction. In my opinion, therefore, the trial Court was right: in following Ganga Prasad's case and decreeing the suit. I would, therefore, restpre the judgment and decree passed by the trial Court and reverse those of the lower appellate court and allow the appeal. There would be no order as to costs throughout.