Sadasiva Aiyar, J.
1. This is an appeal against the order of the District Judge of Madura who in reversal of the order of the Principal District Munsiff of Madura directed possession of certain properties to the respondents.
2. The facts are a little complicated and the material ones have to be stated to understand the questions in dispute. In stating them I shall sometimes identify the parties with their predecessors in title in order to avoid unnecessary and confusing details. The appellants in C.M.S.A. 25 and 26 were the petitioners in the Munsiff's Court. As mortgagee, their vendor (predecessor in title) obtained the first decree for sale of the plaint properties in a suit brought against the mortgagor and against the respondents (2nd mortgagees). Either by carelessness or deliberately in order to obtain a speedy decree for sale, he agreed to a decree for sale subject to the subsequent mortgage right of the respondents. This decree was passed in July 1907.
3. The respondents then brought O.S., No. 343 of 1909/against the common mortgagors and against the vendor of petitioners (as if he was a subsequent mortgagee a position which/he consented to occupy in the proceedings in the prior suit). After this suit of 1909 was brought, the petitioners' vendor brought the mortgaged properties to sale in execution of his first decree and purchased them himself on 8-11-1909. Then he) filed a written statement in the respondents' suit claiming, priority over respondents' mortgage. While that suit was pending he got delivery of the properties which lie purchased in his first suit hi March' 1910.
4. The respondents' second suit was decreed on 23-8-1910 and that decree directed the plaint property to be sold 'subject to the priority ' of the petitioner's vendor ' to the extent of the amount declared due ' to her in her prior decree of 1907. In accordance with this preliminary decree of August 191.0 a final decree was passed in I9I.6, the properties were again sold in the second suit of the respondents and they were purchased ' by the respondents in October 1917.
5. I have already said that the petitioner's vendor as purchaser in his first suit obtained delivery through court in March 19.10 ejecting the common mortgagors. The respondents as purchasers in 1917 in their second suit applied, for delivery and got delivery on 5-2-1919 dispossessing the petitioners. It was under these circumstances that toe petitioners filed their applications in the Munsif's Court out of which the second appeals have arisen. The applications were filed under O. 21, R. 100 for restoration of possession (as I stated in the beginning 1 have identified the vendor of the petitioners whose names are Appiah K.R. Rukmani Animal, A. Ramachari and A. Rajaram with his predecessor in title including Venkatachala Aiyar who was the first mortgagee of 1894, his title being traced through several transfers by alienations, inheritance etc. So also with the Respondents.)
6. The District Munsiff granted the petitioners' applications and restored them to possession on the ground that their vendor's court purchase in November 1909 was prior to respondents' court purchase of 1917 and that the respondents' decree of August 1.910 directed sale of the property subject to the petitioners' vendors' claim of priority. On appeal by the respondents, the Lower Appellate Court re-restored possession to the respondents. Though the judgment of the lower appellate court contains several paragraphs, the reason for the decision ma}' be said to be given only in one short sentence as follows: - 'The subsequent mortgagees the present appellants (that is the, appellants before the District Court who are the respondents in this Court and were the respondents in the Munsif's Court)' had a right to redeem the first mortgagee and they have therefore a right to possession,, in pursuance of their purchase in execution.' The contentions formulated in the 15 grounds of the Memorandum of Appeal to this Court may be boiled down to these three namely, (1) No appeal lay to the District Judge from the order of the District Munsif as the order was passed by the District Munsif on an application under Order 21, Rule 100 and as Order 21, Rule 103 makes the District Munsif's order final subject only to the result of a suit by the defeated party; (2) The petitioners' appellants' decree for sale and purchase being earlier, they were entitled to possession against the respondents; (3) At any rate, the lower appellate court ought to have granted possession to the respondents only on condition that they paid the amount due under the petitioners' first decree.
7. If the appellants' first contention that no appeal lay to the District Judge is correct, 1hen their second appeals to this Court in a matter in which there is not even a first appeal are, of course still more incompetent and they ought to have put in revision petitions against the District Judge's order on the ground that it was passed by him without jurisdiction. However as we have power to convert a Memorandum of Appeal into a Revision Petition in a suitable case, I am not inclined to dispose of these second appeals on a mere technical ground. The question whether an appeal lay to the District Court should, no doubt, be answered in the negative if the petitioners applications to the District Munsiff fell only under Order 21 Rule 100 having regard to the provisions of O. 21, R. 103. But it is contended by the respondents that the applications fell also under Section 47 (old Section 244 that the common order was therefore a decree within the definition of decree in Section 2 Clause 2 and that appeals consequently lay under Section 96(1) to the District Court from that order. Much may be said and much has been said in support of both sides on the question whether, an appeal does or does not lie where an application under Order 21, Rule 100 was fought out between persons who were parties to the suit or the representatives of the parties to the suit. Veyindra-muthu Pillai v. Maya Nadan I.L.R(1919) . M.L.J. 456 and Meyyappa Cfietti v. Chidambara Chetty I.L.R(1919) . M.L.J. 603 Support the respondents' contention that an appeal lies in such; sases. Dipru v. Hari siipdu Shet I.L.R.(1917) 42 Bom. 10 and the decision of Oldfield and Bakewell, JJ. in A.A.O. No. 118 of 19.16 support the appellants' contention. 1 think in a matter of procedure, it is advisable to follow the preponderance of authority in this Court, especially as Oldfield, J. who was himself a party to the decision in A. A. O. No. 118 of 1916 afterwards (in Meyappa Chetty v. Chidambata Chetty I.L.R.(1919) M.L.J. 603 ) treated that decision as of ' doubtful correctness'. This disposes of the first contention of the side of the appellants.
8. We next come to the 2nd contention of the appellants, namely, that as first purchasers of the rights of the mortgagor, the petitioners - Appellants are entitled to possession. That would be so according to the authorities if their predecessor in title was not a party to the respondents' subsequent mortgage suit. As pointed out by my learned brother in the case in Chinnu Pillai v. Venkatasamy Chettiar (1915) I.L.R. Mad 77 (decided by my learned brother and Srinivasa, Aiyangar, JJ.) 'what passes to a mortgagee is the right to sell the mortgagor's interest as it stood at the date of the mortgage, subject only to this; Sri Rajah Venkatadri Appa Row : (1916)31MLJ219 decided by Ayling and Srinivasa Aiyangar, JJ, the head note of which is as follows: ' In cases of judgments inter parties, the later adjudication should be taken as superseding the earlier whether or not the earlier adjudication was pleaded as a bar to the trial of the suit in which the later adjudication was made'. Hence the second contention also fails.
9. An regards the 3rd contention, the learned Vakil for the reepondents intimated that his clients were prepared to pay the amount declared due to the petitioner under the decree in O.S. No. 276 of 1906 into Court at any time. 1 think that Justice and principle require that lower appellate court's decree ought to be modified as follows:
Add to the first paragraph of the decrees of the Lower Appellate Court in A. Section No. 249 of 191.9 after the word 'certificate' the words 'but subject to the appellants in the District Court (Kuttuva Narasimhier and Kuttuva Kasturi Ranga Aiyar) paying to the petitioner (Rukmani Aminal) half the amount due under the decree in O. S. No. 278 of 1906 within Ist July 1921 the amount so due being also inserted at the end of the decree'. A similar addition will be made to the decree in A. Section No. 250 of 1919. There will also be a clause before the heading 'Appellants' costs' to the effect that in default of payment of the amount, declared to be due on the 1st July 1921 within that date the appeal to the District Court shall stand dismissed with costs.
10. As regards the costs in this Court 1 would direct the parties to bear their respective costs.
11. Coutts Trotter, J: - On the first point, I agree with my Lord that in matters of procedure it is most advisable that the preponderence of authority in this Court should be followed, even supposing that if the matter were res Integra one might come to a different conclusion. I therefore adopt the doctrine of Veyindramuthu Pillai v. Maya Nadan (1919) 39 M.L.J. 456 and Meyyappa Chetty v. Chidambaram Chetty (1919) 39 M.L.J. 603 that Rule 103 of Order 21 only applies to cases where strangers to the decree are involved, and that Section 47 of the Civil Procedure Code governs cases where those concerned are parties to the suit or representatives of parties. On that view, an appeal lay, and was rightly entertained. The result is certainly logical, though I cannot bring myself to believe that the draftsman of Order 21 Rule 103 meant to give both an appeal and a substantive right of suit to the defeated party. But I yield to the consideration that in matters of procedure, consistency is the all-important thing to keep in view.
12. On the merits also, I agree with my Lord, though on some what different grounds. This is an application in execution: and I conceive that all we are called upon or entitled to do is to construe the actual decree that is before us. It may be that the result would be the same if we had to consider both decrees together, and if my conclusions in Chinnu Pillai v. Venkatasami Chettiar I.L.R.(1915) Mad 77 are sound, it would seem that the respondents case here is well founded. But I prefer to rest my decision on the narrower ground that we are only concerned with the second decree, that in O.S. No. 343 of' 1909. That decree ordered the sale of the property subject to the amount due to the respondent under the decree, in O.S. No. 276 of 1906. The only possible construction of the decree in O. S. No. 343 of 1909 is that the equity of redemption passed to the purchaser in that sale, i.e., the respondent, subject to the rights of the appellant as mortgagee.
13. I agree that the appeals should be dismissed.