1. The plaintiff, who is a sub-mortgagee of the 1st defendant's mortgage-interests in the property of 2nd and 3rd defendants, has been given a personal decree against the 1st defendant's legal representative, but he appeals on the ground that the lower Courts have refused his claim to enforce his security against the mortgaged property. The original mortgage was redeemed before plaintiff instituted this suit.
2. Plaintiff neither alleged nor proved that the mortgagors had notice of his submortgage before the redemption took place. His Vakil now argues that the lower Appellate Court should not have found against the fact of notice without an issue on the point, but we cannot allow this objection to be raised when the plaintiff himself was responsible for this defect, if any.
3. We have no hesitation in confirming the view taken by the lower Courts on the point of law that a sub-mortgage is extinguished by the payment of the mortgage-debt by the mortgagor, if he had no notice or knowledge of the sub-mortgage and acts in good faith. An observation to this effect occurs in Narayana Mudali v. Raghavammal 18 M. L.J. 462. and we have not been referred to any authority for the contrary view. Sahadev Ravji Bagadev. Shekh Papa Miya 6 Bom. L.R. 836. is to the same effect. The second appeal fails and is dismissed with costs (one set of costs.)