1. The facts out of which this second appeal arises are briefly as follows: The plaintiff sued for recovery of possession of lands mortgaged to him by the defendant No. 3 on the 10th Sraban 1309, corresponding to 26th July 1902. The plaintiff had sued on his mortgage in 1903 and the defendant No. 2 got himself impleaded on the ground that he had dispossessed the plaintiff. On the 2nd June 1904, the plaintiff got a decree against defendant No. 3 only, upon compromise. The suit was dismissed as against defendant No. 2. By consent of the parties, a mortgage decree was passed, and two months' time was given to the defendant No. 3 to pay the mortgage money with interest &c.; according to the account to be taken, and in default the mortgage property was ordered to be sold. With regard to the contention that has been raised that the decree was not a mortgage decree, I need only point out that both Section 86 and Section 88 of the Transfer of Property Act say that in a suit for foreclosure or in a suit for sale if the plaintiff succeeds, the Court shall pass a mortgage decree, and it is obvious that if the defendant confesses that the plaintiff ought to succeed on the footing of the mortgage-debt, the Court is bound to pass a mortgage decree. On the 4th January 1905, the defendant No. 3 executed a conveyance to the defendant No. 1, who is the son of defendant No. 2. These transactions between defendant No. 3 and defendants Nos. 1 and 2 appear to me to be extremely suspicious and to savour of fraud. The learned Munsif apparently had the same idea moving in his mind, but both he and the Subordinate Judge have found as a matter of fact that there was no fraud; still I cannot say that any of these defendants have thereby secured equitable consideration from the Court. On the other hand, the learned Judges in the Courts below seem to have thought that the plaintiff also was not entitled to much equitable consideration inasmuch as he, well knowing that defendant No. 1 had purchased the equity of redemption, obtained the transfer of the land from defendant No. 3 by what the Subordinate Judge characterizes as threats. I do not know what the evidence on the matter is, but I should have thought that as the parties had got a decree by consent, that the plaintiff's conduct was not on the face of it open to any objection. Be that as it may, on the 19th March 1907, the plaintiff purchased the property from defendant No. 3 and he says that he had been in possession from before the time of the mortgage suit by virtue of an oral agreement. It is found by the Courts below that he had not been in possession before the year 1314, but he has proved his possession from that date by filing receipts. He has since been dispossessed by defendant No. 1 and defendant No. 2 and he now sues to recover possession.
2. I think that the right decision in this case would be to hold that when the defendant No. 1 purchased the equity of redemption, the plaintiff had still the right to an order absolute under the law as it stood before the enactment of the new Code of Civil Procedure, and this case was before that enactment when there was no period of limitation for an application for an order absolute as is laid down in the case of Tiluk Singh v. Parsotein Proshad 22 C.924 and the plaintiff did within three years take a transfer of the property from defendant No. 3 in pursuance of what the parties had agreed upon at the time they took out the mortgage decree. But if the plaintiff had applied for an order absolute, and if the defendant No. 1 had come in, he would have had to redeem, the plaintiff was in no way bound to bring defendant No. 1 into Court upon his application for an order absolute; and if the defendant No. 1 had not appeared and offered to redeem, all his rights would have ceased upon the sale of the property. The most that can be said is that as the plaintiff neglected to pursue his remedy in Court and as he allowed the defendant No. 1 to purchase the equity of redemption, he can only be restored to possession after allowing the defendant No. 1 the option to redeem his mortgage. This is in accordance with what is laid down by the Privy Council in NilKant Banerji v. Suresh Chandra Mullick 12 C. 414 at p. 422; 12 I.A. 171 and by the Bombay Court in Parshotam Bhaishankar v. Rumal Zunjar 20 B. 196. It might be argued and it has been argued that technically the plaintiff would not be entitled to recover direct possession. But these rulings are clear authority for the proposition that in a suit of this nature, he is entitled to recover possession conditionally on the defendants failure to redeem.
3. Both in law and equity, the proper order to pass in this case is that the appeal be decreed, and that the judgment and decree of the lower Court be set aside, and the plaintiff be given a decree for possession conditionally on the defendants' failure to redeem by payment of the mortgage money with costs and interest calculated by the Court up to the date fixed for redemption in the Original suit;, and, following that, interest at 6 per cent, within six months from the date of this decree reaching the lower Court.
4. The appellant is entitled to his costs in all the Courts.
5. I agree that the order to be passed in this case should be as stated by my learned brother. The defendant No. 1's purchase of the equity of redemption being subsequent to the decree nisi for sale, he was not a necessary party to the further proceedings in the mortgage suit. The plaintiff mortgagee was entitled to settle the mortgage suit with the mortgagor without taking any notice of the title of defendant No. 1. They did settle the mortgage suit by agreeing that the mortgaged property should pass to the mortgagee without recourse to the ordinary process of public sale. The defendant No. 1 must be held to have been bound by this arrangement Bishop of Winchester v. Paine 11 Ves. Rep. 194; 8 R.R. 131. But inasmuch as an order absolute was not obtained from the Court, the defendant No. 1's equity of redemption remained alive. The plaintiff was, therefore, entitled in the present suit to a decree for possession subject to defendant No. 1's right to redeem.