W. Comer Petheram, Kt., C.J.
1. These were two suits brought by the mortgagees of certain properties to recover the mortgage money, and they have obtained decrees.
2. The appellant is the defendant No. 7 who held a mortgage of some of the properties included in these mortgages, his mortgage being prior in date to that of the plaintiffs in both these suits.
3. The Subordinate Judge who tried the suits has disposed of the defendant's claim on the ground that he had himself put up a portion of the property mortgaged to him for sale, and had bought that property himself for a sum considerably less than its value, and that the true value of the property so put up and so purchased by him exceeded greatly the amount of his debt, and that under the authority of the case of Hart v. Tara Prasanna Mukherji I.L.R. 11 Cal. 718 the second mortgagees were entitled to treat his claim as paid off and done with, and were entitled to enforce their lien without reference to his mortgage. In coming to this conclusion the learned Subordinate Judge, relying upon that case, has noticed the case of Sheonath Doss v. Janki Prosad Singh reported in I.L.R. 16 Cal. 132 decided by this Court, and has endeavoured to reconcile the two; but he has not noticed the case of Mahabir Pershad Singh v. Macnaghten reported in I.L.R. 16 Cal. 682 decided by the Privy Council. This case of course is binding upon this Court; and if it overrules the case of Hart v. Tara Prasanna Mukherji the case in the Privy Council is to be acted upon.
4. With reference to the case of Sheonath Doss v. Janki Prosad Singh I.L.R. 16 Cal. 132 we think that it was sufficient authority for the learned Subordinate Judge to have acted upon, as showing that the mortgagee having obtained leave to bid was in the position of an independent purchaser.
5. However that may be, the case in the Privy Council makes the matter clear, because Lord WATSON, in delivering the judgment of the Privy Council, says: 'Leave to bid puts an end to the disability of the mortgagee, and puts him in the same position as any independent purchaser.'
6. If that is so--and on the authority of the Privy Council that must be taken to be so--this person, having obtained leave to bid, was an independent purchaser, and he was only obliged to give credit for the amount of his bid, and consequently we think that the learned Subordinate Judge was wrong in the conclusion he came to on this point; but having come to this conclusion on this point, he did not proceed to try the other issues. One of the other issues in the case which had been originally proposed to be raised, but which had not been accepted, and which is to be found at page 12 of the paper-book, is in these words--'Whether or not, by reason of the mocurree right in mehal Khakhri having been purchased at auction sale by the defendant No. 7, the decree of the said defendant has been fully satisfied; and whether or not he is entitled to put other properties up to sale.' Taking the view of the law laid down by the Privy Council, it is clear that that issue becomes most material, and consequently we set aside the judgment of the Subordinate Judge and remand the case to him with directions to try that issue, having regard to the remarks which we have made.
7. In addition to that, at page 97 of the paper-book, are the other issues in the case, and the fourth of those issues is this--'as between the parties to these suits, who has priority of lien over the mortgaged premises.' That issue also was not tried at the trial because it was not necessary in consequence of the decision of this point of law, but now it is necessary that this issue should be tried, because, having regard to the remarks made before us by Baboo Uma Kali Mukerjee, it may happen that, upon an enquiry being made into this point, it will turn out that a portion of the amount which was advanced by this defendant No. 7 was not advanced in such a way and in such terms as to give him priority over the second mortgagee, and consequently this issue as well as the other will have to be tried.
8. In dealing with the previous issue, I ought to have mentioned the form of the petition for leave to bid. It will be found at pages 79 and 80 of the paper-book, and it asked leave to buy the property for the amount of the petitioner's decree if no one else made a higher bid,' and the leave seems to have been given in the terms of the petition. Having regard to that, it may be that, upon a thorough enquiry, it will be found that the bid which was in fact made of Rs. 40,000 was made upon the basis of this petition, and then, as between all the parties, although a bid of Rs. 40,000 was recorded, it must be taken to be a bid for the amount of the decree-holder's decree. If that should turn out to be so, then probably the Subordinate Judge will consider that this defendant No. 7 was in fact paid off by what had taken place. These are questions which will have to be decided by the learned Subordinate Judge upon the trial of these two issues, and with these remarks we remand these two cases for the trial of those issues, retaining the case upon the files of this Court. We reserve the question of cost till the final decision of these appeals.