Anantakrishna Iyer, J.
1. This second appeal has been preferred by plaintiffs who, as purchasers from the 2nd defendant and her brother Muhammad Hussain, claim to be entitled to the suit property, said to have been purchased by the 1st defendant in execution of the mortgage decree that she obtained against the 2nd defendant. The facts are these. The 2nd defendant executed a mortgage-deed Ex. I in 1911 in favour of the 1st defendant. The 1st defends ant put that mortgage into suit and, when the suit was pending the plaintiffs purchased the property under Ex. A from both the 2nd defendant and her brother Muhammad Hussain. The 2nd plaintiff as P. W. No. 1 admits that a portion of the consideration for Ex, A was reserved with the plaintiffs for payment to the 1st defendant in respect of the decree that she had obtained. The plaintiffs did not, however, make any payment. The result was that the 1st defendant, in execution of the decree which she obtained, purchased the property and got delivery through Court. The plaintiffs intervened under Order XXI of the Code of Civil Procedure, but their objections were not heeded to with the result that the 1st defendant obtained delivery of the properties in execution. The plaintiff's present suit is for declaration of their title and for cancellation of the delivery order.
2. Several defences were raised by the 1st defendant. The main defences were those covered by issues Nos. 2 and 3. Both the lower Courts held that the plaintiffs were bound to discharge the decree-debt in O.S. No. 215 of 1914 and on that ground they held that the plaintiffs were not entitled to any relief, Having had that question fully discussed before me, I have come to the conclusion that the 1st defendant not being a party to Ex. A the plaintiffs' sale deed, nor to the arrangement made between the 2nd defendant and her brother on the one hand and plaintiffs the vendees on the other, with reference to the payment of the decree amount, is not entitled to rely on the same, nor base any rights in her favour by virtue of a transaction to which she was not a party. Reading Ex. A, I am not able to find that the plaintiffs undertook with 1st defendant to discharge the decree amount. No doubt, the amount was reserved with them by the 2nd defendant and her brother, and they would have their own remedies against the plaintiffs If the plaintiffs did not act according to the terms of the agreement entered into by them with the 2nd defendant and her brother. So far as the 1st defendant is concerned, I am clearly of the opinion that she is not entitled to take advantage of the arrangement mentioned in Ex. A. The learned Counsel for the 1st defendant, however, drew my attention to para. 4 of the written statement filed by the 1st defendant in which it is alleged, that the properties belonged really to the 2nd defendant, and that for a debt due by Muhammad Hussain the 2nd defendant executed the mortgage-deed to the 1st defendant and that brother of the 2nd defendant also attested the said mortgage. He drew my attention to the fact that issue two was specifically raised with reference to the said allegations in the written statement, and that the lower Appellate Court has not recorded any finding on issue No. 2. I think that, before I finally dispose of the appeal, it is necessary to have a definite finding on the point covered by issue No. 2 on the evidence on record. I accordingly call upon the lower Appellate Court to record a finding on issue No. 2, and the finding should be submitted within one month after the re opening of the lower Appellate Court, seven days will be allowed for objections.
3. The case was very fully discussed before me, and I thick it is proper that I should record my impressions, in case the finding on issue No. 2 should be ultimately against the first defendant. It was argued that because the first defendant purchased the whole of the properties in suit by virtue of the decree in the mortgage suit and got possession of the same the plaintiff's only remedy would be to file a suit for partition and that the plaintiffs would not be entitled to any relief in the suit as framed. No doubt, in case it be found on the question of estoppel that the plaintiffs are estopped from setting up their claim to the suit properties, and from contending that the mortgage to the 1st defendant is not binding upon them, then the plaintiffs would not be entitled to any relief at all. If, however, the finding on the issue of estoppel is in favour of the plaintiffs, then, I think the proper relief that should be given to the plaintiffs in this case would be to give plaintiffs joint possession along with the first defendant and modify the delivery order to first defendant accordingly, with liberty to the plaintiffs and the 1st defendant to work out their rights in the properties by a suit for partition.
4. Having regard to the observations of the lower Appellate Court in para. 3 of the finding, I have to accept its finding and I hold that the 1st defendant has not proved that 2nd defendant's brother and the plaintiffs are estopped from setting up 2nd defendant's brother Muhammad Hussain's rights in the properties.
5. The result will be that the decree of the lower Courts will be modified by declaring that plaintiffs are entitled to Muhammad Hussain's rights in the properties and the delivery made to the 1st defendant in O.S. No. 215 of 1914 will be set aside to this extent that plaintiffs and 1st defendant should be held entitled to joint possession of the properties till their respective rights are worked out in separate appropriate suits. In the circumstances each party will bear his costs in all Courts.