Abdur Rahim, J.
1. This appeal is by the 12th defendant in a suit, the object, of which was to have it declared that certain lands (marked Nos. 3 and 4 on the plan) belong to the plaintiff and were not liable to be sold in execution of a decree obtained by the 12th defendant against the 1st defendant in Original Suit No. 292 of 1898 on a simple mortgage bond executed by the latter in favour of the former in 1890. The Munsif found, on the question of the plaintiff's title, that the lands which were originally the joint property of the 1st and 8th defendants and their two brothers, Chinnathambi and Muthukaunu, fell to the share of the two latter at a partition effected between them about 24 years before the institution of the suit and long prior to the mortgage by the 1st defendant to the 12th defendant. The District Judge's finding on this point, such as it is, cannot be said to be satisfactory, but he has dismissed the appeal preferred by the 12th defendant against the decree of the Munsif, which was in favour of the plaintiffs, holding, in effect, that the 1st and 13th defendants (the 13th defendant had also joined in the execution of the mortgage) not having been in possession of the laud as the evidence showed since 1894 for a period ofmorethani2 years before the attempt of the 12th defendant to bring the property to sale in execution of his mortgage decree, and the plaintiff's predecessors-in-title and the plaintiffs having been all this time in adverse possession of the property, the right of the 1st defendant and the 13th defendant in the property, if they had any, became extinguished, and the property could not, therefore, be sold in execution of the mortgage-decree obtained against them by the 12th defendant. If this view of the learned judge be correct, there would be no necessity to remit the case to him for a proper determination of the question relating to partition. Mr. T. Rangachariar who appeared before us for the appellant (12th defendant) has not disputed the finding of the District Judge as to the duration and character of possession of the plaintiffs and their predecessors-in-title, and in answer to a question which I put to him in the course of the argument, Mr. Rangachariar stated that he would accept the finding on the point to mean that the plaintiffs' predecessors-in-title and the plaintiffs intended to prescribe for an absolute title and not merely for a title subject to the rights of the 12th defendant as mortgagee, His contention is that, though the rights of the mortgagor in the mortgaged property may be extinguished by adverse possession by a person for 12 years after the execution of the mortgage, yet, in no case, would the mortgagee's remedy against the mortgaged property be lost, if his right to enforce the mortgage against the mortgagor is not barred, for instance, when it has been kept alive by payment of interest or acknowledgment. He relies for authority on Aimadar Mandal v. Makhan Lal Dey I. L. R. (1906) C. 1015 : 10 C.W.N. 904 which has been followed by Munro and Krishnasawmi Aiyar JJ. in Vekatachala Asari v. Subramania Chetty (1910) M.W.N. 866 without, as far as it appears, any further discussion of the question; and, if these decisions are right Mr. Rangachariar's contention must prevail. I am, however, unable to take the view of the law expressed in those cases. Maclean C.J. who delivered the judgment of the court in the Calcutta case, thinks that the proposition which he jays down, namely, that it is only when a mortgagee buys the mortgaged property on its being sold under the decree that time begins to run against him because, prior to that, he had no title to the property and the decree and sale gave him a new right, is supported by Heath v. Pugh (1882) 7 A.C. 235. But, with all respect to the learned judge, I do not find anything in that case, either in the judgment of the Court of Appeal delivered by Lord Selborne L.C., or in the judgment delivered in the House of Lords, from which such a proposition can be deduced as being applicable to a case in which the person sought to be ejected does not hold the property under a title derived from the mortgagor. Heath v. Pugh (1882) 7 A.C. 235 was not a case of adverse possession at all; there the mortgagee, who had the legal estate in the mortgaged property vested in him, brought a suit for foreclosure, impleading in that suit the defendant who had purchased the equity of redemption from the mortgagors (who held the property in trust) or from one of them, subsequent to the mortgage and obtained a: decree within the time allowed by the statute, but when he instituted a suit to recover possession, 12 years had elapsed from the date of the mortgage and he was met by the plea that the suit was barred under 3 and 4 William IV, Cap. 27. The Court of Appeal held that the decree for foreclosure gave the mortgagee a new right against the defendant who, it is to be observed, was a party to the suit for foreclosure and that time would count only from the date of the decree. The defendant in that case derived his title from the mortgagor who was in possession and not by adverse possession, and the decision proceeded on the reasoning that until foreclosure the mortgage was merely a security for the debt, that although the legal estate had been conveyed to the mortgagee (which, it may be noted, is not the case here) the interest in the land itself remained in the mortgagor, the equity of redemption being an estate in the land; that the order of foreclosure vested the ownership for the first time in the mortgagee as if by a new purchase and that, though the mortgagee might have claimed possession by virtue of legal estate conveyed to him under the mortgage, yet 'there can be no two things more distinct or opposite than possession as mortgagee and possession as the owner of the estate.' The entire argument treats the position of the defendant as in no way distinct from that of the mortgagor and it could not be contended in that case that it would be otherwise. In Prannath Roy Chowdhury v. Rookea Begum (1859) 7 M.I.A. 323 : 1859 4 W.R. 37 it is laid down : 'Where a mortgage is subject bylaw to be foreclosed, the title to foreclose is in the nature of a limit to the title to redeem. It by no means follows, as a consequence, that the mortgagee-foreclosing will be able in a suit for possession to make good against all occupants a title to possession.' It is clear that a mortgagee who has obtained a decree for sale will not be in a better position than a mortgagee foreclosing.
2. Now, if we were to apply the arguments of Lord Selborne in Heath v. Pugh (1882) 7 A.C. 235 to a case like this and the one reported Aimadar Mandal v. Makhan Lal Dey I. L. R. (1906) C. 1015 it seems to me that the conclusion in a case where the mortgaged property has been in peaceable possession of a stranger for more than the statutory period must be the opposite of that reached in Heath v. Pugh (1882) 7 A.C. 235. A person who is in adverse possession of land for 12 years acquires a title to the laud, the rights of the owner of the land being extinguished, and since a mortgage is merely a security for the debt and the interest in the land remained in the mortgagor, it is difficult to see how the existence of the mortgage at the time adverse possession commenced can prevent the person in such possession acquiring the ownership of the land. It is conceded that the interest of the mortgagor in the land would be extinguished, but it is contended that the title by prescription must be subject to the liability of the land being sold for payment of the anterior mortgage debt. The mortgagee's right is to sell the interest of the mortgagor in the laud and the mortgage decree, under which the land is attempted to be sold, cannot bind persons who do not derive their title from the mortgagor, and were not parties to the suit in which the mortgage decree was 'passed but claim a statutory title adversely to the mortgagor. There may be cases in which a person claiming to have acquired a title by prescription, would acquire it, subject to the existing mortgage but that would depend upon whether the person in possession intended to acquire an absolute title or only a title subject to the rights of the mortgagee. This is laid down in clear language by Turner, C.J. and Muthuswamy Iyer J. in Ammu v. Ramakrishna Sastri I. L. R. (1879) M. 226 where they observe at page 229 :--'But there are other cases in which the rights and interest of the mortgagor and mortgagee are equally invaded, e.g., when under a sale for arrears of revenue, a purchaser acquires possession and thenceforward holds adversely Doth to the mortgagor and mortgagee or when the mortgagor has remained in possession and a stranger ousts him from the lands.' The latter portion of the passage applies to the present case. In the case of Ammu v. Ramakrishna Sastri I. L. R. (1879) M. 226 the suit was brought for redemption, and it was held that the claim against the defendant who was in possession but did not claim under the mortgagee was barred under Article 145 and Article 148 had no application to the case. The decision reported in Ram Coomar Sein v. Prosunna Coomar Sein (1864) W.R. 375 went even further, so far as the position of a person who has dispossessed the mortgagor is concerned. There it was held, relying on Prannath Roy Chowdhury v. Rookea Begam (1859) 7 M.I.A. 323 : 4 W.R. 37 that, though there may be cases in which the possession of a person who does not derive his title from the mortgagor may be adverse to the mortgagor but still not adverse to the mortgagee, yet where the mortgagor is dispossessed, and his title disputed and another person obtains possession of the estate, the possession of the new holder becomes adverse to both the mortgagor and the mortgagee, and the mortgagee's cause of action arises against the new holder on the date on which the latter obtained such adverse possession of the mortgaged estate. To the same effect was the law laid down in Sheoumber Sahoo v. Bhowaneedeen Kulwar (1870) 2 R.N.W.P.H.C. 223 namely, that a mortgagee is bound to come in within 12 years to vindicate his title to the land against a third party in a averse possession who does not claim under the mortgagor. Here I would observe that these two cases make it clear that the mortgagee is not without remedy against a trespasser taking possession of the mortgaged land, although it may be that he is not entitled to possession under his mortgage, and I myself do not see any valid reason why the mortgagee should not be able under such circumstances to protect his interests by proper proceedings. On the other hand, no authority has been cited to us in support of the proposition to the contrary, on which is based one of the grounds for the decision in Aimadar Mandul v. Makham Lal Dey I. L. R. (1906) C. 1015.
3. I am further of opinion, although the learned judges who decided the Calcutta cases thought otherwise, that the point is really covered by what is laid down by the Privy Council in Karan Singh v. Bakar Ali Khan I. L. R. (1882) A.I. : 9 I.A. 99. The facts of the Privy Council case arc substantially the same so far as they effect the question now raised as those of the present case. There the suit was instituted by the holders of certain mortgage bonds to recover the sum due and the plaintiffs further claimed to enforce payment of the sum due under the bonds by sale of the mortgaged property. Their Lordships were of opinion that the claim to sell the property would have been barred under Article 145 of the Limitation Act of 1871 - Article 144 of the Limitation Act of 1877 by which the case is governed is to the same effect - if it were proved that the defendant who set up a title distinct from that of the mortgagors had been in adverse possession for more than 12 years before the institution of the suit. Their Lordships treated the suit as one for possession of immovable property or an interest in immoveable property. I may also observe that, if the argument of the appellant were to prevail, the result would be that when a property is under mortgage and the mortgagor or his successor in interest goes on paying interest on the debt or otherwise acknowledges his liability, persons in peaceable and unchanged possession and enjoyment of such property in assertion of their own rights, whatever the length of the time during which their possession and enjoyment might have lasted, would not be secured in the title. I am of opinion that the weight of authority as well as reason is against the contention of the appellant and the appeal must be dismissed with costs.
4. I agree.
[But gee S.A. No. 844 of 1907 reported infra he which Benson and Munro JJ. upheld the contrary view ED.]