1. The plaintiff obtained a mortgage dated 21st May 1895. The 5th defendant had a subsequent mortgage over the same property. The latter instituted a suit Original Suit No. 821 of 1905, on his mortgage and, in execution of the decree obtained by him, a portion of the property in question was purchased by the 6th defendant. The plaintiff obtained a sale-deed in April 1907 from the 3rd defendant in discharge of the debt due to him under his mortgage. The plaint alleges that plaintiff was not then aware of the mortgage in 5th defendant's favour and the plaintiff, therefore, instituted this suit for sale under his mortgage, stating that he did not desire to have the benefit of the sale in his favour.
2. The question for decision is whether the plaintiff's suit for sale is maintainable. The sale to him was made long after Original Suit No. 821 of 1905 was instituted. Whether the sale-deed was before or after the purchase by the 6th defendant, the plaintiff's rights were swept away by the 6th defendant's purchase, for either his (plaintiff's) purchase, being subsequent to the 6th defendant's purchase of the land, was useless or it was affected by the doctrine of lis pendens; and in either case, his right must be defeated by the 6th defendant's purchase. He is, therefore, entitled to fall back on his mortgage and the suit for sale must be held to be maintainable. See Surjiram Marwari v. Barhamdeo Persad 1 C.L.J. 337. The plaintiff is willing to proceed first against the mortgaged properties, other than those included in 6th defendant's purchase. We shall, therefore, confirm the decree of the District Judge with the modification that the mortgaged properties, other than those purchased by the 6th defendant, be first sold, and the latter properties be sold only in case the whole of the amount due to the plaintiff is not realised by the sale of those properties. With this modification, we dismiss the second appeal with costs. Time for payment extended to three months from this date.