Francis William Maclean, K.C.I.E., C.J.
1. This seems to me to be a very simple case. The suit is one to enforce a mortgage. The property mortgaged was property No. 2. That was sold under a decree in a rent rait. After paying off the arrears or rent there was a surplus of sale proceeds amounting to 400 to 500 rupees. The mortgagee says that his security covers those proceeds of sale, which now stand in the place of property No. 2, which has been sold, and that he is entitled to treat that as part of his security, and he relies upon Section 78 of the Transfer of Property Act.
2. It is not apparent, and I do not see that it makes any difference, whether under the decree in the rent suit the property was put up for sale with power to the purchaser to avoid encumbrances or not. Under the provisions of Section 73 of the Transfer of Property Act, the plaintiff has a charge on the surplus sale proceeds, and I do not think that Sections 159, 161 to 167 of the Bengal Tenancy Act can in any way prejudice the plaintiffs right in that respect. It is not suggested that the sale was occasioned by any default on the part of the mortgagee. His claim is not opposed by the mortgagor, but by a creditor of the' mortgagor, who has obtained a decree against him.
3. The judgment and decree of the Lower Appellate Court must, therefore, be reversed, and it must be declared that the plaintiff, as mortgagee, has a first charge upon the surplus proceeds of the sale.
4. The appellant must have his costs, which may be tacked on to 'his security.
5. I agree.