Durga Churn Mukhopadhya vs Chandra Nath Gupta Chowdry and Others

Two of the properties mortgaged to the Plaintiff, who is a second mortgagee, had been previously mortgaged to another person who in execution of the decree obtained on his mortgage bond had caused the properties to be sold, and they were purchased by the 4th Defendant in the present case. The Plaintiff has brought this suit as second mortgagee to enforce his mortgage; and the question is whether the properties described as Nos. 2 and 3 in the plaint and which have already been sold under the first mortgage can be again sold (subject to the first mortgage), in satisfaction of the Plaintiff''s demand. he Plaintiff was not a party to the suit which the first mortgagee brought, and therefore any interests which he had were not affected by the decree or sale. He had the right to redeem the property mortgaged or to sell it subject to the lien of the first mortgagee, and had the properties not been sold in satisfaction of the first mortgage, there is no doubt hat he could have sold them subject to that mortgage. The properties having however been sold we think that the only-right which he has now left is the right to redeem. If he had been made a party to the suit of the first mortgagee that is the only right which he would have had. Not having been made a party to that suit his right to redeem is not affected. There is no right of redemption left in the mortgagor. His right to redeem went at the time of the first sale, and all that the Plaintiff could sell if he sold anything would be his own right to redeem. We think therefore that the lower Courts were right in holding that the Plaintiff without redeeming the first mortgagee cannot bring the properties to sale in satisfaction of his subsequent charge.

The Point which has been raised before us does not appear to have been taken in the lower Courts. There the contention was that the Plaintiff was entitled to the benefits of sec. 81 of the Transfer of Property Act, and it was held that that section was not applicable as he had full notice of the first mortgage. The Allahabad and Madras cases which have been cited before us do not appear to be in point, as in those cases there had been no sale of the mortgaged property in satisfaction of the first mortgage. The appeal is dismissed with costs.