Ghose and Gordon, JJ.
1. This was a suit to enforce a mortgage security bearing date the 24th Bysack 1293 corresponding with 6th May 1886.
2. There were several defendants in the Court below, but most of them did not appear to defend the suit. It is only necessary to refer to the defendant No 1, who is the mortgagor, and to the defendant No. 2, who has, since the plaintiff's mortgage, purchased the equity of redemption of the mortgagor at a sale in execution of certain decree, and has also obtained an assignment of five different mortgages of dates anterior to the plaintiff's mortgage. And, having apparently kept alive these earlier mortgages, he (the defendant No. 2) contended in the Court below that the plaintiff was not entitled to sell the mortgaged property without redeeming the earlier mortgages now in his hands. It appears that since the assignment to him of those mortgages, the defendant No. 2 has, upon two of them, obtained decrees against various parties, amongst whom the plaintiff is one. These decrees are binding upon the plaintiff, and in execution thereof the defendant No. 2 is entitled to sell the mortgaged properties at any time he pleases.
3. We might also mention two other defendants, Chintamoni Dutt and Brojonath Dutt. These persons, though they appeared in the suit, did not produce, nor support, their alleged mortgage.
4. The only other person to whom reference need be made is defendant No. 4, who has an usufructuary mortgage of a date even anterior to the dates of the five mortgages which have been assigned over to defendant No. 2.
5. Under these circumstances, the Subordinate Judge, while making a decree in favour of the plaintiff, held that the plaintiff was not entitled to cause the sale of the mortgaged property without redeeming in the first instance the five prior mortgages of the defendant No. 2, but that when such redemption has been made, he would be entitled to sell the property mortgaged to him subject to the usufructuary mortgage of the defendant No. 4.
6. In making the decree in this form, the Subordinate Judge was guided by a decision of the Allahabad High Court in the case of Matta Din Kasodhan v. Rain Hossein I.L.R. 13 All. 432 where it was held that a second mortgagee was not entitled to bring to sale the property mortgaged to him without first redeeming all the prior mortgages. This case was considered, but was dissented from by this Court in the case of Kantiram v. Kutubuddin Mahomed I.L.R. 22 Cal. 33, where it was held by us, having regard to the various provisions; of the Transfer of Property Act, that a second mortgagee is entitled to sell the property mortgaged, subject to any prior mortgage. In that view of the matter, the declaration that has been made in this case by the Subordinate Judge as to the necessity of redemption of the earlier mortgages would seem to be wrong; but having regard to the circumstances already noticed, viz., that the defendant No. 2 has, upon two of his anterior mortgages, obtained decrees against the plaintiff binding these very properties, we think it would be introducing an unnecessary difficulty and complication if we were to make a decree directing that the plaintiff should be entitled to sell the property mortgaged to him, subject to the earlier mortgages, the two mortgages, in respect of which the defendant No. 2 has already obtained decrees inclusive.
7. As already mentioned, it is open to the defendant No. 2, at any time he pleases, to put his decrees already obtained against the plaintiff into force, and sell these very properties in satisfaction of his two mortgages; and in that event the decree that we are asked to make, and which we might have made if it had not been for the circumstance already stated, would be wholly infructuous. It seems to us that, although ordinarily, having in view the provisions of the Transfer of Property Act, and the case in I.L.R. 22 Calcutta, already referred to, the plaintiff would be entitled to a decree to sell the property subject to the prior incumbrances, still, under the circumstances of this particular case, we think we are not called upon to make a decree to that effect; rather we are of opinion that the decree passed by the Court below, giving the plaintiff liberty to redeem the earlier mortgages and then to sell the property subject to the usufructuary mortgage, is equitable and proper.
8. In this view of the matter we dismiss the appeal, but under the circumstances we think that each party should bear his own costs.