1. We think that the decisions of the lower Courts in this case are not correct, and must be set aside. The plaintiff brought this suit against the defendants Nos. 1 and 2, upon a mortgage-bond executed on the 30th Kartick 1282 (corresponding to the 15th of November 1874). The mortgage-bond was executed by the defendant No. 1, who is a purdanasheen lady, through the defendant No. 2. In that bond a sixteen-ganda share of Mouza Futtehpore was hypothecated as security for the loan. The plaintiff brought the suit to recover the money due by enforcing his mortgage lien. The suit was brought against the executants of the bond and Gunga Pershad Sahoo, who became the auction-purchaser of the property, mortgaged after the execution of the bond. In the written statement of Gunga Pershad, who alone defended the suit, it is alleged that, on the 2nd of September 1875, the property mortgaged, viz., the sixteen-ganda share of Futtehpore, was sold by the mortgagors to the plaintiff, and the original bond-debt was set off against the consideration-money of the bill of sale.
2. On these facts Gunga Pershad contended, in the lower Courts, that the mortgage-debt was not in existence at the time when the suit was brought. The plaintiff, although he does not allege in the plaint that this bill of sale of September 1875 had been cancelled, gave evidence to that effect at the trial. The first Court, being of opinion that the original mortgage-debt was satisfied by the bill of sale of the 2nd September 1875, and disbelieving the plaintiff's allegation that that bill of sale was subsequently cancelled, decreed the claim only against the executants of the bond, dismissing the plaintiff's suit for the enforcement of the lien under the bond. The plaintiff appealed against that decree, and the Subordinate Judge, being of opinion that the bill of sale, after it was executed, could not be cancelled, and that the original mortgage-debt was satisfied by the execution of the subsequent bill of sale, dismissed the appeal of the plaintiff. It may be mentioned here that there is no dispute that, on the date when this bill of sale was executed, viz., on the 2nd September 1875, the mortgaged property was under attachment under the decree in execution of which the defendant Gunga Pershad Sahoo subsequently became the purchaser. It is quite clear, therefore, that even supposing that the kobala of the 2nd September 1875 was not cancelled as alleged or attempted to be proved by the plaintiff, it was absolutely void against the auction-purchaser Gunga Pershad. That being so, we think that, in accordance with the principle laid down in the case of Bissen Doss Singh v. Sheo Prosad Singh 5 C.L.R. 29 the plaintiff in this case is entitled to fall back upon the lien created by the bond of the 30th Kartick 1282. We are, therefore, of opinion that the plaintiff's appeal to the lower Appellate Court ought to have been decreed. We accordingly direct that that appeal be decreed. The decree passed by the Munsif was against the executants of the bond. Whether that decree is right or wrong it is not for us to consider in this second appeal, because there was no appeal against that decree by the defendants against whom it was passed. That decree will, therefore, stand. But we think that the plaintiff will also be entitled to realize the amount decreed in his favour with costs by the sale of the mortgaged premises. The plaintiff will recover costs of the first Court from the defendants jointly, and the costs of the lower Appellate Court and of this Court from the defendant Gunga Pershad Sahoo.