1. It appears that the husband of the defendant No. 1 in this suit mortgaged certain land to the plaintiff in May 1902 and the following dates are of some importance in reference to the only question which arises for determination.
2. In 1908 the plaintiff brought a suit on his mortgage and on the 6th April 1908, he obtained a preliminary decree under which he was entitled to recover the sum of Rs. 900-5-0 or in default of payment of that sum to bring the mortgaged property to sale.
3. In 1906 the mortgagee's landlords brought a suit for the rent of the land and on the 27th June 1906, obtained a decree for Rs. 116-4-6. In execution of that decree the land was sold on the 23rd April 1908 for something under Rs. 900.
4. On the 26th May 1908, the plaintiff deposited in Court the sum of 116-4-9 and had the sale in execution set aside under Section 310A of the old Civil Procedure Code.
5. On the 26th August 1908, the defendant No. 1 sold the mortgaged property to the defendant No. 2 by private sale. The amount due under the plaintiffs preliminary decree was then paid into Court and that decree was, therefore, satisfied.
6. In January 1909, the plaintiff brought the present suit to establish his right to a lien on the mortgaged property for the amount paid by him to have the execution sale net aside with interest, and to obtain an order for the sale of the property in the event of the sum claimed not being paid.
7. The plaintiff has succeeded in both the lower Courts and this appeal is preferred by the defendant No. 2.
8. The lower Courts relied on the decision of this Court in the case of Rakhohari v. Bipradas 31 C. 975 and the principle of that decision is applicable to the circumstances of the present case; there is no more to be said.
9. Before me it was contended fur the appellant that the present case was distinguishable from the case referred to.
10. It was urged, in the first place, that the deposit then was made after the pi a in tiff's security was merged in the decree, To this plea I think a good answer was made on behalf of the plaintiff. The fact that the plaintiff's rights under the mortgage-deed had merged in his rights under the decree did not put an end to the relationship of mortgagor and mortgagee which still subsisted as between the plaintiff and the defendant No. 1 at the date of the deposit made under Section 310A. At that date security was not extinguished Surjiram v. Barhamdeo (sic) and the plaintiff was entitled to add the amount of the deposit to his charge.
11. It was urged, secondly, that even if that be so, the security was at any rate extinguished by the payment into Court of the amount due to the plaintiff under the preliminary decree on his mortgage, that the mortgage was then redeemed and the plaintiff then lost any lien which he might previously have enforced. The argument is plausible, but I cannot assent to it. It cannot be sup*posed that the plaintiff intended to make a gift to the mortgagor of the amount deposited to avoid the execution sale. The plaintiff can have had no other intention than to add that amount to his charge. It is only just and equitable to conclude that by making the deposit the plaintiff acquired a lien from which the mortgaged property was not discharged by the mere payment of the sum duo under the preliminary decree. That payment satisfied the decree, but left, the lien (acquired subsequent to the decree) outstanding.
12. It must be remembered that the sale to the defendant No. 2 was a private sale behind the plaintiff's back. He could not prevent the sale and he could not prevent a part of the price from being paid into Court insatisfaction of his decree. The two defendants are near relatives and it has never been suggested at any stage of this litigation that the defendant No. 2 was not fully aware of the action which the plaintiff had taken to avoid the execution sale. Whether the sale to defendant No. 2 was a real sale or colourable sale, the result must be the sale. The sale and the payment into Court cannot he used as a device to defeat the plaintiff's right to a lien.
13. The mortgage-deed contains a clause to the following effect:
If at the instance of the landlord, the mortgaged properly is sold in execution of a decree for arrears of rent, then the mortgagee will he entitled to realise the principal money and interest from the sale-proceeds.
14. It was somewhat faintly argued that this clause indicated the remedy contemplated by the parties in case of the sale of the mortgaged property in execution of a decree for arrears of rent and precluded the plaintiff from acquiring any lien in respect of the deposit made by him. The point does not appear to have been taken in the Courts below and has no substance. The inclusion in the deed of a remedy which the mortgagee already had by law (Section 73 of the Transfer of Property Act) cannot debar the mortgagee from pursuing any other remedy which may be open to him.
15. In my view the lower Courts were right in adopting and applying the principle adverted to in Rakhohari's case 31 C. 975 and this appeal must be dismissed with costs.
16. The cross-objection relating to interest filed on the plaintiff's behalf was not pressed and is dismissed without costs.
17. The appeal is dismissed with costs.