1. The Courts below are clearly wrong in dismissing the suit altogether against defendant No. 2. There has been no decision in either Court on the question which properly arises.
2. The plaintiff claims on the footing of a mortgage of 1882, alleging that on the execution of that mortgage money was advanced to pay off Swaminada Ayyar's mortgage of 1877, which mortgage was again executed to pay off Subbayyar's mortgage of 1876. The second defendant's mortgage of the 10th February 1877 was prior to Swaminada Ayyar's, but subsequent to Subbayyar's mortgage. What the plaintiff claimed was that he, having paid off the mortgage of 1876, was entitled to that extent to priority over defendant No. 2. The cases relied upon are Gokaldas Gopaldas v. Puranmal Premsukhdas I.L.R. 10 Cal. 1035 and Bupabai v. Audimulam I.L.R. 11 Mad. 345. We must ask the District Judge to decide with reference to the law laid down in those cases and Section 101 of the Transfer of Property Act whether in fact the plaintiff's money went in discharge of the mortgage of Swaminada Ayyar and whether Swaminada Ayyar's money went in discharge of Subbayyar's mortgage, and, if so, whether the plaintiff is entitled to priority and to what extent. This has reference only to the house site. With reference to the superstructure there was no second mortgage and therefore the plaintiff is entitled to a decree.
3. The finding is to be returned within six weeks from the date of receipt of this order, and seven days after the posting of the finding in this Court will be allowed for filing objections. Fresh evidence may be taken.
4. [In compliance with the above order the District Judge submitted his finding, which was to the effect that the plaintiff had advanced Rs. 300 under Exhibit C,.the mortgage of 1882, for the purpose of discharging the decree which Swaminada Ayyar had obtained under the mortgage of 1877 and that Swaminada Ayyar's judgment-debt had been partly discharged thereby, and that the plaintiff was entitled to priority to that extent over the second defendant.]
5. This second appeal having come on before Collins, C.J., and Wilkinson, J., for final disposal, the above finding was accepted and the decree modified accordingly.