1. This is an appeal by an alienee of mortgaged property against an order declaring in what order the mortgaged properties are to be sold. The Subordinate Judge has directed that the property alienated to the appellant should be sold first, and the property in the hands of defendants Nos. 4 to 6 which was sold to them free from all encumbrances should be sold next, and that the property in the possession of the mortgagor should be sold last. Under the sale-deed by the mortgagor to the appellant a sum of Rs. 11,508 was directed to be paid towards the balance due on the mortgage. Admittedly no portion of this amount was paid until after the mortgage suit was filed and, consequently, it is only fair to hold as the Subordinate Judge has held that the appellant was most largely in default in the payment of the mortgage-debt. It is now contended in appeal that the appellant's alienees having paid Rs. 11,500 into Court, appellant is not liable to pay any further amount towards interest or costs on the ground that he was not bound to pay this amount of Rs. 11,500 until the mortgagor had tendered the balance of the mortgage amount to the mortgagee. He relies on a decision of the Privy Council in Muhammad Siddiq Khan v. Muhammad Nasir Ullah Khan 3 C.W.N. 201 but that case can be distinguished on the facts. There, it was held by the Allahabad High Court that when the sale was effected by the mortgagor, there was an agreement that a portion of the consideration which was to be applied in discharge of the mortgage debt was to be retained by the vendee as security for the balance of the payment by the vendor-mortgagor. It was also found that a tender had been made by the vendee of the amount due by him, but that the vendor declined the offer. In appeal to the Privy Council, their Lordships remarked that 'they are of opinion that there is no ground for the appeal' and they go on to state 'the Rs. 17,000 were not left with the vendees simply as a deposit of the money of the vendor. They were to retain it as a security that the property sold should be freed from the encumbrances upon it and that they should have a good title. They were entitled to retain it until the vendor provided the rest of the money necessary for this purpose.' Then they proceed 'from the nature of the transaction it was not a deposit upon which the vendees would be liable to pay interest unless they refused or omitted to pay the money when they were informed by the vendor that he was prepared to pay the balance necessary to satisfy what was due.... Without that balance, they were not bound to pay or tender him the Rs. 17,000.'
2. Ordinarily the purchase-money must be treated as deposit in the hands of the vendee which is payable to the vendor, but in the circumstances of that case, their Lordships held that it was not a simple case of purchase-money but that there was according to the terms of the sale an agreement that this money should be treated as security and, that the property sold should be free from incumbrances. In the present case, the facts are very different. There is one passage relied upon by the appellant in the sale-deed which is as follows: 'If there should be any excess or deficit in the amounts directed to be paid towards the aforesaid hypothecations, we shall ourselves be personally present and discharge the same in full.' From this recital it is contended that we must assume that it was a sale free of encumbrances and that the money to be paid was to be held merely as security for the discharge of the incumbrances. As against this contention we have first of all the statement of the appellant himself that the amount of Rs. 11,500 was not the full amount due under the mortgage-deed and that there was a balance still due by the mortgagor. If this is so, the Clause as to excess or deficit cannot refer to the question of Rs. 11,500 being the exact amount due under the mortgage, for both the parties were aware that this was not the whole of the amount due. No doubt the vendor would be liable to make good any loss to the vendee provided that the vendee had paid the amount due by him. The sale-deed expressly states that' there are no encumbrances of any kind 'except the 2 mortgages above mentioned.' It was clearly understood between the parties that these mortgages were subsisting and that the payment by the vendee would not fully discharge the liability. In such circumstances it is impossible to hold that there was any agreement such as is referred to in Muhammad Siddiq Khan v. Muhammad Nasir Ullah Khan 3 C.W.N. 201 and, therefore, the ordinary rule of vendor and purchaser must be applied and the purchaser is liable for interest on the amount not paid by him. This was not disputed in the lower (Jourt and we must accept that fact as further evidence of the agreement between the parties.
3. A further point is raised that the Executing Court is not competent to marshal the order in which the mortgaged property shall be sold when the question has been decided in the trial of the suit. The point was raised in the written statement in the suit but there has been no reference in the judgment. The only part of the judgment relating to this question refers to an agreement between the mortgagee and the mortgagor and to this agreement the alienees were apparently not parties, there having been no adjudication on this point. It was, therefore, open to the executing Court to declare the order of the sale. The appeal consequently fails and is dismissed with costs.