1. The plaintiff in the present case is the first mortgagee of certain properties and the second mortgagee of the same and other properties. The third defendant is mortgagee of the properties comprised in the second mortgage The first defendant is the original mortgagor. The fourth defendant is the purchaser of the equity of redemption. The suit is for an account on the footing of the plaintiff's mortgage and for sale of the properties. At the hearing the third defendant appeared and proved his mortgage and asked that the payment of his claim should be provided for. The original mortgagor also appeared. The other defendant, the purchaser of the equity of redemption, did not appear. As between the parties appearing no question was raised as to the mortgages, and a decree was made for an account of what was due on each of the mortgages Six months time was allowed for payment of what should be found due on the several mortgages, and it was directed that in default of payment the properties comprised in the several mortgages should be sold, and the sale proceeds marshalled and applied in payment of the several mortgage debts. The decree further directed the payment by the original mortgagor of any balance remaining due after the sale proceeds had been exhausted. The purchaser of the equity of redemption has now obtained a rule calling on the other parties to show cause why the decree should not be varied and restricted so as to affect the plaintiff's mortgage only; and it was said on the part of the applicant that in making a decree in the present form the Court had in effect made a decree as between co-defendants which in a suit of this kind it has no jurisdiction to do. A number of English authorities were cited; but it seems to me that they do not support the contention which is now put forward. The cases are all foreclosure actions, in which the point considered and determined was whether as between the plaintiff, the first mortgagee, and the defendants who were puisne incumbrancers and the mortgagor there should be only one period of redemption fixed for all the defendants, or whether there should be successive periods of redemption so as to give each incumbrancer the opportunity in turn of redeeming the plaintiff and foreclosing all subsequent incumbrances.
2. The rule to be deduced from these authorities I think is that where the puisne incumbrancers do not appear, or where, if they do appear, any question as to priority arises, there will only be one period of redemption allowed without prejudice to questions arising as between the defendants, but that, on the other hand, where a puisne incumbrancer does appear and sets up and proves his mortgage, and no question as to priority arises, the Court will allow him to have the benefit of the action and make a decree in his favour, assigning him a separate period of redemption.
3. The right of puisne incumbrancers to appear and ask for judgment as between themselves and other defendants, under the circumstances specified, seems to be clearly recognised and laid down by Chitty, J in the case of Platt v. Mendel L.R. 27 Ch. D. 248, 249.
4. That is the practice which has been adopted in foreclosure actions as to subsequent incumbrancers who appear and prove their mortgages. In this Court, where suits on mortgages are usually not for foreclosure but for sale of the property, the analogous position is that of a puisne mortgagee who is made a defendant, and who appears and proves his mortgage, and asks that the decree sought to be obtained by the plaintiff may also provide for an account on the footing of his mortgage, and for payment of the amount due to him out of the sale proceeds. In these cases it has been the practice of this Court for a long series of years-certainly since the decision of Pontifex, J., in 1879 in the case of Anhindro Bhoosun Chatterjee v. Chunnoo Lall Johurry and Ors. I.L.R. 5 Cal. 101 that where no issue is raised as between the defendants, and no question of priority arises, on proof of the subsequent mortgages, to make a decree directing an account on the footing of each of the mortgages and fixing one period of redemption for all the defendants. The decree in the present case was made strictly in accordance with that practice, which is now too well settled to be disturbed. I think, therefore, the decree ought not to be set aside or varied on the ground that it was made without jurisdiction.
5. The next point is whether the applicant has made a sufficient case to have the decree set aside under Section 108 of the Code.
6. He admits he was duly served with the summons in the suit, but he says he was prevented by sufficient cause from appearing when the suit was called on for hearing within the meaning of the section, inasmuch as he had no notice, either in the summons to appear and answer or otherwise, that a decree as between the co-defendants would be asked for or made, and that he was advised that he need not appear in the suit.
7. He wishes now to intervene and raise an issue as to the consideration alleged for the second mortgage, which he says he would have raised at the hearing had he known that this could have been done.
8. Having regard to the practice followed by this Court for the past seventeen years, I do not think the applicant can be heard to say that he was unaware that it was open to the Court to make a decree on the footing of the second mortgage, if asked to do so by the second mortgagee, and if no issue were raised as to its validity. It is moreover admitted that the applicant was in actual attendance at the Court on the day of hearing under a subpoena issued in this case. He says, however, that he went away having been informed that his presence was not required. I must hold that his non-appearance at the hearing was voluntary, and that in no sense was he prevented from appearing. The result is that the rule must be discharged with costs.
9. Mr. Apcar applies on behalf of the plaintiff for his costs of the application.
10. You may add your costs to your claim.