1. The appellant has become possessed by purchase of certain land comprised in the certificate granted to his vendor, who himself being plaintiff in a suit on a mortgage of 1884, bought that and other pieces of land at the sale in the execution of the decree. At the date of that suit there was a second mortgage, 'but the holder of that mortgage was not made a party.
2. He accordingly brought a suit in 1895 making the appellant a party, and he obtained a decree authorizing among other things the sale of his land subject to the right of the appellant. In making the decree the District Judge practically refused to decide the questions arising between the appellant and the plaintiff in the suit. It was to the interest of both parties to have those questions decided, Yet there was no appeal. Now the property having been put up for sale and bought by the plaintiff, the question arises as between his heirs and the appellant, whether they are entitled to take possession, and I think the question must be decided in the present proceeding. According to the appellant's contention, his rights, subject to which the sale was made, include the right of possession and are in no way limited except by the respondent's right of redemption and consequent right on his mortgage. According to the respondent's contention all rights in the property have passed to them in virtue of the plaintiff's purchase subject only to the right of the appellant to redeem the property.
3. In my opinion the appellant's contention must prevail. Not only has he the prior title inasmuch as his mortgage and his sale were prior in point of time to the plaintiffs mortgage and decree but he has the advantage of having been put in possession. The case is similar to Venkata Narasammah v. Ramiah I.L.R. (1879) M. 108 and stronger than those reported in I.L.R. 5 C. 265 Nanak Chand v. Teluckdye Koer I.L.R. (1879) C. 265 for in these latter cases it was held that as between two purchasers under different decrees the right of possession remains with him who has first taken possession without regard to the priority of the claim on which the decree was obtained. These cases are plainly distinguishable from the case in which the second mortgagee has taken possession under his mortgage. It stands to reason that the right to possession so obtained cannot he affected by the result of a suit on the first mortgage in which the mortgagee in possession was not made a party (Venkata v. Kannam I.L.R. (1882) M. 185 In the present case the plaintiff was not put on possession, and therefore the only right which, had he been joined in the suit on the first mortgage, he could have claimed to exercise was the right, to redeem that mortgage with the view of enforcing his own mortgage. That right and no other, it appears to me, remains to him now. It is only on the supposition that the property exceeds in value the amount secured by the first montgage, that they have any actual interest in the property. The respondents' vakil relies on Bangayya Chettiar v. Parthasarathi 4 and argues that his client as second mortgagee is entitled to have the property sold in satisfaction of the claim. I think it must be allowed that the language used in the judgment in that case is open to exception. But the point actually decided had regard solely to the sufficiency of the decree made in favour of the second mortgagee. There was no question in that case as to the first purchaser's right of possession, and the decree did in fact completely protect the right of the first mortgagee who had bought. The case in Narayanaswamy Naidu v. Narayana Bau I.L.R. (1879) M. 108 turns upon the special facts of the case. Different reasons are given by the two learned judges for the conclusion at which they arrive.
4. It is a necessary consequence of framing a decree in the manner in which the decree now being executed has been framed that further litigation should ensue. Practically the question we have to dicide is who shall take the first step in that litigation. In my view it is the respondents who must make the first move, since the appellant is in lawful possession under a title prior to that acquired by the respondents.
5. I would allow 'the appeal and direct that the appellant be restored to possession. I would allow no costs as the difficulty would not have arisen but for the omission to join the plaintiff in the first suit.
6. I agree.