1. In this case the 2nd defendant, who had a mortgage of certain properties from the 1st defendant, instituted a suit on his mortgage and obtained a decree for sale. The plaintiff claiming to be a prior mortgagee entitled to a sum of Rs. 3,300 objected to the sale. The District Munsif, in whose Court proceedings in execution of the 2nd defendant's mortgage were going on, directed that notice should be given to intending bidders of the plaintiff's claim of a prior mortgage. No sale bad yet been held. The plaintiff's suit is for a declaration that the 2nd defendant's sale should be subject to his mortgage for Rs. 3,300.
2. Two legal objections were raised by the 2nd defendant to the suit. The first objection is that the suit was beyond the jurisdiction of the District Munsif's Court as the amount claimed by the plaintiff as due to him on his mortgage, was more than Rs 2,500. This contention ought, in our opinion, to have been upheld. The District Judge considers that the matter in dispute in the suit should not be taken to be of a higher value than the amount for which the 2nd defendant obtained a mortgage decree, which was Rs. 264. It is difficult to understand how this view can be supported. If the plaintiff succeeds in his suit, he would establish a claim to the extent of Rs. 3,300 as against the 2nd defendant or rather against the mortgaged property over which the 2nd defendant has also a mortgage and if he fails in his suit, he would lose as against the 2nd defendant the right of enforcing a claim for Rs. 3,300. This case is not similar to cases in which it has been held that if the property itself is not worth the amount of the lien, the value of the suit may be taken not to exceed the market-value of the property. We must hold that the suit ought not to have been instituted in the Munsif's Court.
3. The second objection raised was that the plaintiff was not entitled to institute a suit for a mere declaration as against the 2nd defendant.
4. Now, it is undoubted law that a prior mortgagee may institute a suit for sale against a subsequent mortgagee.
5. The plaintiff, therefore, was entitled to seek consequential relief against the 2nd defendant in the shape of a decree for sale.
6. The proviso to Section 42 of the Specific Relief Act must, therefore, be held to bar the present suit.
7. The result is, that the decrees of the lower Courts must be reversed and the suit dismissed with costs throughout.