S.K. Ghose, J.
1. This is a second appeal by defendants 14 and 15 who are called the Sukul defendants. It appears that one Brshad Ali mortgaged the suit land and other lands to the plaintiffs in 1905. The plaintiffs brought a suit upon the mortgage on 20th April 1918 and got a decree on 5th February 1921 for Rs. 778. In execution of the mortgage, the plaintiffs purchased the property on 25th July 1921 and obtained delivery of possession on 13th January 1922. The land was then in occupation of certain bargadars of the present appellants. They brought suit against the plaintiffs under Section 9, Specific Belief Act, and obtained a decree and dispossessed the plaintiffs on 17th March 1923. The pre-sent appellants are subsequent mortgagees, having taken a mortgage from Ershad Ali in 1907. They were not made parties to the mortgage suit brought by the plaintiffs. It is not also disputed that one of the daughters of Ershad called Tunia's mother was not impleaded in the plaintiffs' mortgage suit. The present appellants brought a suit upon their mortgage on 20th August 1919. They got a decree on 26th November 1919 and in execution thereof purchased the property on 21st April 1920 and obtained possession on 1st August 1920. Thus the appellants brought their mortgage suit after the plaintiffs but obtained decree and made their purchase before the plaintiffs. The plaintiffs brought the present suit on 3rd January 1924 praying for. khas possession of the disputed land on declaration of their title as the result of the aforesaid purchase in execution of their mortgage decree. The Munsif decreed the suit but subject to the right of redemption of the subsequent mortgagees, the present appellants and also of the daughter of' Ershad named Tunia's mother or her heirs who were not parties to the suit. On appeal, the Subordinate Judge upheld this decision, only modifying it by ascertaining the amount which the present appellants would have to pay by way of redemption. Against that judgment, the present second appeal has been filed.
2. It is contended for the appellants that the effect of the decree made by the Courts below is to convert an ordinary suit for title and possession into a redemption suit and it is contended that the plaintiffs are not entitled to such a decree, having regard to the fact that a suit to enforce the security as against the subsequent mortgagees, namely the present appellants, would be barred by time, 12 years having expired from the due date. The Courts below have relied on the case in Nihar Mala Debi v. Sarojbhandu Bhattacharjya : AIR1933Cal728 wherein it is laid down that a mortgagee decree-holder who has purchased the mortgaged properties in execution of his decree can maintain a suit for possession of the properties against a person who had acquired an equity of redemption, but who was not made a party to the mortgage suit and of whose acquisition of the equity of redemption the mortgagee had no special knowledge, subject to the right of redemption of such person. In the present case it has been found that the plaintiffs had no knowledge of the subsequent mortgage in favour of the appellants. The learned advocate for the appellants in this Court does not contest the aforesaid proposition, but his contention is that the Courts below have overlooked the fact that the plaintiffs are not in a position to enforce the liability for redemption, if it can be so called, because their right to enforce their mortgage security is barred by limitation. It has been pointed out that there is divergence of judicial opinion regarding the maintainability of such a suit. According to one view, the mortgage decree obtained by the mortgagee and the subsequent sale has no effect as against a person who was a necessary party to the mortgage suit but who had been left out of the suit. According to this view, the proper remedy of the mortgagee purchaser is to institute a suit upon the mortgage against the person left out and ask for a decree for sale : Habibulla v. Jugdeo Singh (1907) 6 CLJ 609. According to the other view which is represented by the case in Nihar Mala Debi v. Sarojbhandu Bhattacharjya : AIR1933Cal728 , the mortgagee purchaser acquires the property discharged of the mortgage lien but subject to the rights of the parties who were omitted, provided the mortgagee had no notice of such parties at the time of the suit. In the present case, we are not troubled with this divergence of judicial opinion because, as I have already said, the learned advocate for the appellants does not contest the authority of the case in Nihar Mala Debi v. Sarojbhandu Bhattacharjya : AIR1933Cal728 . But his contention is that if this suit be allowed to be converted into a suit upon the mortgage, it would be barred by limitation counting the time from the due date as given in the mortgage bond and the plaintiff cannot compel a purchaser of the equity of redemption to redeem his mortgage when his right to enforce such mortgage is barred. This view is supported by the decisions of this Court in Kristopada Roy v. Chaityana Charan Mondal (1923) 10 AIR Cal 274, Digambar Suthar v. Suajan : AIR1929Cal233 , Jagat Chandra De v. Abdul Rashia : AIR1935Cal139 and Sm. Dhapubai Mini v. Chandra Nath Chakravarty : AIR1938Cal524 . The same principle applies to the present case and it must be held that the plaintiffs' suit must fail.
3. One other point has been pressed by the learned advocate for the appellants and that is the doctrine of lis pendens. It is pointed out that the plaintiffs' mortgage suit was pending when the appellants brought their mortgage suit. On the other hand, the plaintiffs brought their suit leaving out one of the heirs of the mortgagors, while the appellants brought their suit making all the heirs of the mortgagors parties and they purchased in execution of their decree before the plaintiffs' purchase. Moreover, this point was not raised in the Courts below. We hold therefore that there is no substance in this contention. There is a preliminary objection taken by the learned advocate for the respondents against the maintainability of this appeal on the ground that respondent 6 has died and the appeal has already abated as against him. This respondent was one of the bargadars of the present appellants. It is however possible for one defendant to press the appeal as against the whole decree upon a point which is common to all the defendants. The objection therefore has no force. The result is that the appeal must be allowed and the suit must stand dismissed with costs of the first Court. In view of the circumstances of the case and the fact that the ground upon which the appeal has been allowed was not properly pressed in the Courts below, parties will bear their own costs in this Court and the lower Appellate Court.
4. I agree.