1. This is an appeal by the plaintiffs from the decision of the District Judge, 24-Parganas, affirming the decision of the second Court of the Subordinate Judge of that place. The suit out of which this appeal arises was for recovery of Rs. 2,100 by a sale of premises No. 159(now 195) Lower Circular Road on the basis of a mortgage bond executed by Sarat Kumari Dasi, the predecessor-in-interest of defendants 1 to 3 in favour of the plaintiffs on 19th April 1921. Defendants 4 and 5 are subsequent purchasers of equity of redemption and the other defendants are puisne mortgagees. The Courts below have dismissed the suit on the ground that it is barred by the preliminary mortgage decree passed by this Court on its Original Side in Suit No. 2474 of 1923. This suit on the Original Side of this Court was instituted by one Upendra Mohan Pal Choudhury to enforce a mortgage and a deed of further charge dated 18th March 1920 and 6th June 1920 respectively against defendants 1 to 3 in the present suit. The plaintiffs in the present suit and certain other persons were also impleaded as defendants in that suit as they were puisne mortgagees of the properties covered by the aforesaid mortgage in favour of Upendra Mohan. In the preliminary decree which was passed in Upendra Mohan's suit on 2nd July 1923, an account was ordered to be taken of what was due to the plaintiffs in the present suit on the mortgage which is the subject matter of the present suit and an order for sale of the property which is the subject matter of the present suit was made, although this property was not included in the mortgage in favour of Upendra Mohan and although it was outside the original jurisdiction of this Court. It appears from the judgment of the learned District Judge that the final decree in Upendra Mohan's suit was made on 3rd May 1924. This final decree however was not produced in the Courts below and an application was made before us on behalf of the plaintiffs-appellants to take this final decree as evidence in this case. We allowed this prayer as we were of opinion that without this document it would not be possible for us to pronounce judgment in this case. The final decree in the suit does not contain the order for sale of the property which is the subject matter of the present suit, namely, premises No. 159(now 195) Lower Circular Road. In Sarat Chandra Roy v. Nahapiet (1910) 37 Cal 907, Pugh, J. observed as follows:
This practice of treating the suit (filed by a first mortgagee against his mortgagor and also against the second mortgagee) as one for the benefit of the second mortgagee is based on, or at any rate is in accordance with the English practice as it appears from the case in Platt v. Mendel (1884) 27 Ch D 246. It will be observed that this procedure being based upon the old practice of the Original Side, does not profess to be in agreement with the terms of the Transfer of Property Act. In Mackintosh v. Watkins (1904) 1 C L J 31, Brett and Mookerjee, JJ. sitting on the Appellate Side and dealing with a mortgage of Darjeeling property, held that under the Transfer of Property Act, the proper procedure was different, and they held in effect that the second mortgagee was merely made a party to the suit in order that he might have an opportunity of redeeming if he wished, and in order that he might receive his mortgage money or part of it, out of the surplus sale proceeds after satisfaction of the first mortgage, but that decree was not really a decree in his favour, and that he could not insist upon a Bale nor get a personal decree in his favour if the first mortgagee was satisfied by the mortgagor before or by means of the sale.... The effect of the incorporation of these sections of the Transfer of Property Act as Order 34, Civil P.C., is to put an end to any independent practice on this side of the Court based on the old procedure, and that the Original Side of the Court should now follow the provisions of the Transfer of Property Act which have been imported into the Civil Procedure Code as Order 34, and with them are imported the Forms & to 11 of Appendix D in Soh. 1 which are part of the Act. Referring to form 7 it will be observed that it provides for an account to be taken of what is due to the plaintiff and describes that amount as Rs. X. It then provides for an account of what is due to defendant 1 and describes that sum as Rs. Y, and it then provides what is to happen on payment or non-payment of Rs. X and it provides that if there is a surplus on sale, that is to go in discharge of the sum referred to as Rs. Y. There is no trace of any provision to enable... the second mortgagee, that is the person entitled to Rs. Y, to proceed by way of sale or to get any relief at all, if the other defendant, i.e. the mortgagor, satisfies the first mortgagee's claim referred to as Rs. X.... Under the Code the second mortgagee is there simply for the purpose as indicated by Brett and Mookerjee, JJ. of receiving any surplus sale proceeds or of redeeming, and that he cannot take any independent action and treat the decree as in other respects in his favour. It follows therefore that if he has as he has here a claim to other property as well, that matter can only be dealt with by a separate suit and of course he will be able to bring that suit notwithstanding he is a party to this one.
2. The preliminary decree in Upendra Mohan's suit on the Original Side of this Court was made in accordance with the old practice. When the suit however came to be finally decided, the mistake was detected and the final decree was made for sale of only those properties which were covered by the mortgage in favour of Upendra Mohan in accordance with Order 34, Rule 5(3), Civil P.C. The decision of the Courts below being based on the preliminary decree and not on the final decree, which has now been produced before us, cannot therefore be maintained. The result therefore is that this appeal is allowed, the judgments and decrees of the Courts below are set aside and the case is sent back to the trial Court for disposal according to law. Costs will abide the result.