1. The present suit is brought against the mortgagor and the first auction-purchaser to enforce the lien created by the mortgage bond against these lands.
2. The difficulty in which the plaintiff has been placed is entirely one of his own creation. Instead of suing the mortgagor on his bond, and obtaining a decree declaring his lien and directing the lands to be sold towards satisfaction of it, he adopted a course which ensured the lands being sold so as to realize the smallest price possible. The course is one frequently adopted in Bengal, but this frequency cannot make it less liable to be stigmatized as oppressive if not fraudulent.
3. However this may be, the question for us now to decide is, whether the present suit can be maintained, and we have come to the conclusion that it cannot; and that the decision of the Full Bench in Haran Chunder Ghose v. Dinobundhoo Bose 14 B.L.R. 408 : S.C. 23 W.R. 187 precludes us from giving the relief he sought.
4. In the second suit, which was before the Full Bench, it appears that the nature of the proceedings must have been precisely the same as those here, for Mr. Justice Jackson says, that in it 'the plaintiff sought a fresh decree for the unsatisfied portion of his claim, as well as a declaration of lien as against the alienees. Upon the considerations already stated, I am of opinion that the Munsif, who granted only the latter prayer, was right, and that the Judge, who altered the decree, was wrong.' The majority of the Bench, however, did not concur in this opinion, and both cases were dismissed.
5. We are unable to distinguish that case from the present, and think that we are bound to follow it notwithstanding some observations which were made in the judgment of the majority, which would be inconsistent with the ultimate decision, if they could be construed as the respondent here contends. Possibly they would apply in cases where the property had been alienated before the institution of summary proceedings by the mortgagee, and this view would reconcile with the Full Bench decision, the ruling of Glover and Mitter, JJ. in Aruth Soar v. Juggunath Mahapathur 23 W.R. 461 in which it appears that certainly before the decree the mortgaged property had been sold.
6. Here there being no intervening charge or interest, the plaintiff deliberately elected, for his own reasons, to take a mere money-decree against the mortgagor. The Full Bench did not think it necessary to decide the question raised under Section 7 of the Procedure Code, and for the same reason we need not now do so; but it is by no means certain that the operation of that section would not in itself be an answer to this suit, as a suit in which full relief could have been given, might, at the time of the summary decree, have been instituted against the mortgagor. We decide nothing about any other remedy which may be open to the mortgagee, but we must restore the judgment of the Subordinate Judge.