Richard Garth, C.J.
1. In this case I think I cannot do better than adopt the statement of facts made by the Court below. (His Lordship then stated the facts as above, and continued):
The Judge in the Court below has, in my opinion, dealt with the question with great care and judgment. He considers, and I think rightly, that, notwithstanding the observations made in the special appeal by the learned Judges of this Court, he was bound to determine the question, whether the plaintiff had purchased the mortagagee's rights at the execution-sale. He thought, in the first place, that those observations were not necessary for the determination of the special appeal; and in the next place, that the learned Judges had in fact declined to give any definite opinion as to what interest, if any, the present plaintiff had purchased. In this view I quite agree.
2. Having then very fully discussed the leading authorities upon the question, and especially the Full Bench judgment in the case of Syud Emam Momtazooddeen Mahomed v. Raj Coomar Dass (14 B. L. R., 408; s.c., 23 W. R., 87), the District Judge arrived at the conclusion, that Ramanath did not purchase the mortgagee's rights at the sale, and consequently that his suit should be dismissed.
3. On appeal to this Court, the point has been argued very ably by Baboo Mohini Mohun Boy, the learned pleader for the appellants, who has called our attention to several cases which have followed the full Bench decision.
4. Having taken time to consider our Judgment, and having more fully examined these authorities, I find nothing in any of them which, in our opinion supports the appellants' contention.
5. The Full Bench Ruling, as I understand it, amounts to no more than this, that where a mortgagee obtains a decree against his mortgagor for sale of the mortgaged property to satisfy his debt, he cannot sell that property reserving his own rights over it, because it is for the very purpose of satisfying those rights that the sale is made; and it would be contrary to all justice, and to the avowed object of the sale, to allow the mortgagee to sell the property for the purpose of satisfying his debt, and yet to reserve his mortgage rights as against the purchaser.
6. Then the Full Bench further decided, that if, instead of obtaining a decree for the sale of the mortgaged property, the mortgagee obtains only a simple money-decree, and sells the mortgaged property under it, he is precisely in the same position, so far as his own interest is concerned, as if he had obtained a decree for sale. In either case, when he sells the property, he sells it with his own lien; or perhaps the more accurate and less misleading expression would be, that he sells it freed from his lien.
7. But how can this ruling of the Full Bench assist the appellants' argument in this case? It seems to us to be quite beside it. Indeed, the reasoning of the Full Bench seems rather opposed to the appellant's contention.
8. When the mortgagee puts up for sale the mortgagor's property, and sells it, his lien passes with the property, because, having regard to the nature and object of the sale, the lien is inseparable from the property.
9. But when the mortgagee professedly puts up the mortgagor's property for sale, but in fact sells nothing, because the mortgagor has no property to sell, why should the mortgagee's lien pass to the purchaser? The reason why it passes in the other case is entirely absent in this; and I know of no provision of the law which enables a judgment-creditor, under colour of selling his judgment-debtor's property, to sell his own.
10. Besides which, it appears to me, that if the appellants' contention were correct, it would defeat the very object of the Full Bench, which was to prevent the mortgagee from selling the mortgaged property reserving to himself his own lien.
11. Suppose a case of this kind. A mortgages a property to B, and then sells his own interest to C. B. sues A for the mortgage debt, obtains a money-decree, and puts up A's right, title, and interest in the property for sale.
12. At the same time B also sues C, praying that the mortgaged property in C's hands may be sold to satisfy the mortgage-debt; and he obtains a decree to that effect.
13. The sale under the decree against A takes place first, and D becomes the purchaser. The property is then sold under the decree against C, and E becomes the purchaser.
14. Under which sale does the mortgagee's lien pass?
15. If the contention of the appellants' pleader is correct, it passes by the first sale, and yet the consequence of this would be, that E, under the second sale, Would have bought the mortgagor's property, subject to the mortgagee's lien, which would then be vested in D. In other words, the mortgagee would thus have been enabled to do that which the Full Bench considered to be contrary to justice-namely, to sell the mortgagor's interest for payment of his mortgage debt without giving the purchaser the benefit of his own lien.
16. I only think it necessary to notice a few of the authorities to which our attention was called by the appellants' pleader, because, in Our view of the case, they do not support his argument.
17. One Was the case of Gopee Bundhoo Shantra Mohapattur v. Kalee Pudo Bannerjee (23 W. R., 338). In that case the plaintiff and defendant both took mortgages of the same property from the same person. The plaintiff had two mortgages, both of which Were prior to that of the defendant. He sued upon the last of his mortgages, obtained a decree, and in execution of that decree bought the property himself. After this the defendant brought a suit upon his mortgage, obtained a decree, put up the property for sale, became himself the purchaser, and obtained possession. The plaintiff then brought a suit to recover possession from the defendant upon the strength of his own prior purchase and he obtained a decree for possession in all the Courts. In the High Court the learned Judges thought it right to make a declaration that, upon the defendant's paying to the plaintiff the sum due to the latter upon the first of the plaintiff's mortgages, the defendant should become the holder of the first charge upon the property; but this, as I take it, was not, because the defendant had bought anything under the sale in execution of his decree, but because, being the mortgagee, he had a right (independent of his decree) to redeem the first mortgage.
18. We were then referred to the case of Ram Kant Roy v. Raj Kishore Deb (24 W. R., 94). In that case the plaintiff's vendor had purchased certain property from A, and the plaintiff in A's right sued R. K. for possession. R. K.'s defence was, that A had mortaged the property under certain bonds; that a decree had been obtained by the mortgagee upon those bonds; and that, in execution of that decree, R. K. had purchased the property in question, and obtained possession. The plaintiff then brought a suit to recover this property from R. K., upon the ground that he had purchased it before the attachments under which B. K. had purchased, and the lower Appellate Court found in favor of the plaintiff, upon the ground that if B. K. had any rights under the mortgage-bonds; he should have enforced them against the plaintiff in another suit; but the learned Judges of this Court considered, that as they had all the parties before them, they might adjust their rights in the one suit without compelling R. K. to bring another suit to establish his lien. We do not understand that the point which we have to determine here was ever argued or present to the minds of the learned Judges in that case.
19. Another decision to which we were referred is that of Doss Money Dossee v. Jonmenjoy Mullick (I. L. R., 3 Cal., 363; S. C., 1 C. L. R., 446). The judgment in that case has now been virtually overruled by a Full Bench-Jonmenjoy Mullick v. Dossmoney Dossee (Post, p. 714); but even if that case were good law, it would not have assisted the appellants' argument, because I think that the High Court meant to decide, not that the lien passed to the plaintiff under the sale, but, on the contrary, that either by obtaining the decree itself, or by the sale under it, the plaintiff had lost his lien.