Ganga Prasad Singh vs Mt. Ganeshi Kuer and Others

Manohar Lall, J.—This appeal was referred by me to a Division Bench because it was contended that there are a large number of contradictory decisions on the question whether a person in the position of the plaintiff can only be allowed to redeem and cannot insist on his right to take possession. The facts must be shortly stated. Mt. Manturna Kuer and Baijnath Singh and others had one bigha of kast lands in a certain village out of which Mt. Manturna Kuer claimed 5 kathas, but Baijnath''s claim was that this belonged jointly to him and to the Musammat. In the year 1922 or 1923 the title of Baijnath to 2� kathas out of this 5 kathas was declared in a suit which he instituted against Mt. Manturna Kuer. On 9th March 1926, he executed a money 9 decree which he had obtained against Manturna Kuer and her 2� kathas was sold and purchased by Jagmohan who on 5th October sold it to one Ram Sagar. Baijnath died issue-less and his 2� kathas went to one Prahlad, who already held 5 kathas in this land. Prahlad sold 12� dhurs to Ram Sagar so that Ram Sagar became entitled to 2� kathas which he had already purchased from Jagmohan and this additional 12� dhurs, that'' is to say, to 3 kathas and 2� dhurs. On 12th September 1935, Ram Sagar sold this 3 kathas and 2� dhurs to the plaintiffs. The plaintiffs'' case is that they took possession as the result of h this sale.

Before the title of Baijnath was declared against Mt. Manturna Kuer she had executed a mortgage on 18th April 1922 of the entire 5 kathas in favour of defendant 1, the appellant before us. The mortgagee in the year 1932 instituted a Suit No. 43 of that year to enforce his mortgage but against Mt. Manturna alone. He evidently was not aware of the decision of the suit of 1923 nor of the auction-purchase by Jagmohan and the sale by him in favour of Ram Sagar. The suit was decreed in favour of defendants 1 to 4--defendant 1 is the mortgagee and the other defendants are his sons--on 23rd January 1934. The mortgaged property was put up to sale and purchased on 25th May 1935, by the mortgagees who obtained a formal delivery of possession on 14th June 1936. By this delivery of possession, the plaintiffs were dispossessed and their application under Order 21, Rule 100, Civil P.C. was rejected. Accordingly the plaintiffs instituted the suit giving rise to this appeal on 28th January 1939, for a declaration that as a result of their purchase in September 1935, they had a right to obtain possession against the mortgagee auction-purchaser who had failed to implead as a defendant in his mortgage suit a person with whom the equity of redemption rested at that time.

The trial Court held that before the execution of the mortgage bond it had already been decided by suit that Baijnath Singh had half share and that defendant 5 could not claim the entire share and, therefore, the defendant had no right to mortgage the entire share including the share of Baijnath. With regard to the remaining land covered by the mortgage executed by Manturna Kuer the trial Court held that the sale and dakhal-dehani and decree of the defendant are not binding on the plaintiffs and, therefore, he awarded them possession as claimed. He also gave a finding that the alternative relief of redemption cannot arise because the plaintiff cannot be allowed to redeem the mortgage piecemeal even if the question of redemption arises. Against this decision there was an appeal to the learned Subordinate Judge who took the same view. He negatived the argument advanced before him that as the plaintiff himself had aked for redemption he should be allowed to redeem by observing:

His prayer for redemption was not the only course left to the plaintiff in the present case and as the plaintiff got the first relief which was for khas possession and mesne profit it is open to him not to press this alternative relief.

Hence the second appeal to this Court.

It is argued on behalf of the appellant that the mortgage decree and the mortgage sale are quite valid in law, although this cannot negative the right of the plaintiff to redeem if he likes and that this is the only right open to him. The contention on behalf of the respondent on the other hand is that as defendant 1 did not implead the plaintiff or any of his predecessors who were then the owner of the equity of redemption as a defendant in the mortgage action, the decree is not at all binding on him and the defendant must enforce his rights afresh by instituting a proper suit on the foot of his mortgage of April 1922 or a suit for sale. It was also suggested that if such a suit was now instituted it would be barred by limitation.

This question has been the subject of cone sideration in a large number of cases, but unfortunately the High Courts have taken diametrically opposite views. The view of the Bombay High Court is well presented by the case in Dadoba Arjunji v. Damodar Raghunath 16 Bom. 486 and the latest case Ganapa Rama v. Timmaya Narayan AIR 1942 Bom. 146 the view of the Allahabad High Court by the cases in Hargu Lal Singh v. Gobind Rai (97) 19 All. 541. Madan Lal v. Bhagwan Das (99) 21 All. 235 . Banwari Lal and Another Vs. Nand Ram and Others and Bansidhar and Another Vs. Shiv Singh and Others and the view of the Madras High Court by the case in Entholi Pakrum Kizhakkikandy Kanaran v. VellathParkum Koylil Unnooli 30 Mad. 500 and Sambasiva Ayyar v. Subramania Pillai AIR 1936 Mad. 70 It is suggested that this divergence of opinion is due to the view which may be taken on the question whether the purchaser in these circumstances purchases the equity of redemption as it stood at the date of the mortgage or whether, in view of the general law regarding a decree being not available against one who is not a party to it, he purchases merely the right, title and interest of the judgment-debtor mortgagor at the date of the auction sale by a Court.

In Calcutta also there is a sharp conflict of opinion and many of the cases cannot be reconciled. As this Court has adopted the view that it should (ordinarily) follow the decisions of the Calcutta High Court, it is necessary to notice some of these cases.. In Aghora Nath Banerjee v. Deb Narain Guin 11 C.W.N. 314 the Allahabad view was followed and it was 9 held by Rampini and Woodroffe JJ. that a purchaser in execution of a mortgage decree cannot recover possession from the transferee of an equity of redemption who was not made a party to that decree. But in the same volume in the case of Gangadas Bhattar v. Jogendra Nath Mttter 11 C.W.N. 403, Mookerjee and Holmwood JJ. held that such a purchaser was entitled to recover possession subject to the defendant''s right to redeem. In Habibullah v. Jugdeo Singh 6 C.L.J. 609. Eampini and Brett JJ. held that a purchaser in execution of a mortgage decree has no right to retain possession of the property obtained through civil Court against a purchaser of the equity of redemption, who was not a party in the suit on the mortgage, but at p. 612 Jugdeo Singh v. Habibullah 6 C.L.J. 612 in a case between the same parties, this time decided by Mookerjee and Brett JJ. it was held, just to the contrary, that the purchaser is entitled to recover possession but only subject to the exercise of the right of redemption. Reference may also be made here to two oaiiier cases in Protap Chandra v. Ishan Chandra 4 C.W.N. 266 and Girish Ghunder v. Iswar Ghunder Rai (1900) 4 C.W.N. 452 taking opposite views. In Kalu Sharip v. Abhoy Charan AIR 1921 Cal. 157 Sir Ashutosh Mookerjee C.J. who delivered the judgment of the Letters Patent Bench, in reversing the decision of Walmsley J. observed as follows:

It is plain that the plaintiff is the purchaser of the equity of redemption while the contesting defendant is the purchaser at the mortgage sale. The plaintiff, as holder of the equity of redemption, is not entitled to recover possession, after the mortgage sale has taken place. The fact that he was left out of the mortgage suit does not nullify the decree in that litigation. The true result is, as we pointed out, upon a review of the earlier decisions in Jugdeo Singh v. Habibullah 6 C.L.J. 612 that the omission to make the plaintiff a party to the mortgage suit leaves unaffected his right to redeem: cf. Brojonath v. Khelut Chandra 14 M.I.A. 144. Umes Chunder v. Zahur Fatima 18 Cal. 164. Gobind Lal v. Ram Janam 21 Cal. 70 and Maung Tha v. Maung Mya 37 Cal. 239.

In Jnanendra Nath Singh Roy v. Shorashi Charan Mitra AIR 1922 Cal. 23 the question arose in a suit instituted by a darpatnidar and patnidar of a property who had acquired that interest after the property was given in mortgage for a declaration that the decree in the mortgage suit by the mortgagee was not binding upon him, and in the alternative they prayed for redemption of the mortgage amount. After analysing the well-known cases in Umes Chunder v. Zahur Fatima 18 Cal. 164. Mt. Sukhi v. Ghulam Safdar Khan AIR 1922 P.C. 11. Het Ram v. Shadi AIR 1818 P.C. 34. Matru Lal v. Mt. Durga Kunwaar AIR 1920 P.C. 79 and the case in Gangadas Bhattar v. Jogendra Nath Mttter 11 C.W.N. 403 in pointing out the effect of the transfer to the CPC of the provisions in Section 89, T.P. Act, Woodroffe and Ghose JJ. observed as follows at page 644:

We are of opinion therefore that so far as the plaintiff is concerned the mortgage of the defendant subsists and that the plaintiff should not be allowed to approbate and reprobate the decree in the previous suit and he can only be allowed to redeem on the terms of the mortgage and on payment of interest at the rate payable under the mortgage up to the date of redemption to be fixed in this case.

And then proceeded to determine the principle upon which the accounting ought to have been made. Upon a perusal of the judgment, it appears that the learned Judge addressed themselves to the only question as to what were the terms upon which redemption should be allowed (see page 637). The other question as to whether the plaintiffs were entitled to possession does not seem to have been argued.

In the same volume at p. 1048 (Krishto-pada Roy v. Chaitanya Charan Mandal AIR 1923 Cal. 274 a number of cases of the Calcutta High Court were noticed by the learned Judges. Suhra-wardy J. observed in his judgment that the High Courts in India are not in agreement on the question and that in this unsettled state of the law, if it was incumbent to come to a decision on this question, it would have been necessary to refer the matter to a Pull Bench, but owing to the special facts of this case they did not think it necessary to do so. The special facts were that the mortgagee plaintiff had notice of the transfer of the equity of redemption but nevertheless when he brought a mortgage suit he did not implead the transferee who was to his knowledge in possession of the property. In execution of the mortgage decree, the mortgagee became the purchaser, but as he could not recover possession he instituted a suit to recover possession. He was h willing that the transferee in possession should be given an opportunity to redeem, but as he took no steps whatsoever to recover possession for 20 years after the date of his purchase, the learned Judges refused to give him a decree for possession on those terms.

In Digambar Suthar and Others Vs. Suajan and Others, . Mukerji J. reviewed all the cases which I have noticed so far. He points out at page 104 that an attempt was made before him to distinguish some of the decisions on the ground that the ratio decided of those cases was that the mortgagee had no notice of the assignment of the equity of redemption at the time when he instituted the suit on his mortgage and also on the ground that the mortgagee auction-purchaser was within time in enforcing his security when the suit for possession was instituted by the owner of the equity of redemption who was left out in the mortgage suit. As was to be expected the learned Judge observed that he was in agreement generally with the view of Suhrawardy J. as ho expressed himself in Krishtopada Roy v. Chaitanya Charan Mandal AIR 1923 Cal. 274 that an attempt to reconcile the conflicting decision of the Calcutta High Court was futile and found exceptional features in the case which obviated the necessity of a reference to a Full Bench. The exceptional features were that in the mortgage suit the equity of redemption was entirely unrepresented and that any remedy which the purchaser or the present plaintiff could have on the basis of the mortgage was barred long ago.

Before noticing two other Calcutta eases, it is desirable to refer at this stage to an important decision of their Lordships of the Judicial Committee reported in Bijai Saran Sahi v. Rudra Bageshwari Prasad AIR 1929 P.C. 288 which comes next in order of time. In that case Karya Bharthi, who was the owner of two villages, gave them in simple mortgage and by way of a mortgage by conditional sale in 1904 to the defendants, and in November 1908, he sold the villages to the defendants in lieu of the amount due to them under the mortgages. The defendants obtained possession, but before the sale the plaintiff in execution of a money decree which he had obtained against the mortgagor attached the villages in September 1908 and purchased the equity of redemption in August 1909. By the provisions of Section 64, Civil P.C. it will be noticed that the private transfer by the mortgagor in favour of the mortgagee was void against the attaching money decree-holder. The plaintiff instituted a suit to recover possession from the defendants of these villages with mesne profits. The Subordinate Judge and the High Court concurrently gave the plaintiff a decree. Before their Lordships the only question raised was whether the plaintiff was entitled to oust the possession of the defendants without redeeming the mortgages of 1904 which had been found to be valid and subsisting. Lord Carson in delivering the judgment of their Lordships observed as follows at p. 75:

Now admittedly these mortgages were not usu fruotuary mor tgages, and as the plaintifls (respone dents) have been held to be and are the owners of the equity of redemption it is impossible to see under what title the defendants (appellants) can claim to resist the decree for possession. As stated in the judgment of the High Court, ''They,'' that is the defendants (appellants) ''got possession by virtue of the sale of 19th November 1908.... If the sale is invalid they must surrender possession of the same because their mortgages did not give them any right to possession.'' Whatever rights (if any) they have under their mortgages they can no doubt enforce in proper proceedings taken for the purpose, but there is no principle or authority which enables the defendants (appellants), as contended by them, ''to set up their mortgages as shields against the plaintifi-respondents'' claim for possession.

In the course of the argument before their Lordships, which is given at pp. 78-74, counsel for the appellant submitted that the defendant ought not to be driven to another suit, when Sir Lancelot Sanderson observed: "What right have you to compel the plaintiff to redeem in this suit?" and at page 75 Lord Carson, referring to the judgment of the trial Court, that "redemption is an equitable claim, or in India a legal right which he may seek to enforce and not a liability which he may be compelled to discharge," observed: "That seems to me to be a very accurate view."

It is suggested on behalf of the respondents before us that this decision of their Lordships. of the Judicial Committee is a settler of the vexed question as to whether a person in the position of the plaintiff in the present case is entitled to possession from a mortgagee auction-purchaser or must he submit to a decree for redemption even if the right of mortgagee to enforce his security in a properly constituted action has now become barred by limitation. The same argument was suggested before the learned Judges of the Calcutta High Court in Niharmala Debee Vs. Sarojebandhu Bhattacharjya, . Mullick J. who delivered the judgment of the Division Bench, Jack J. agreeing, overruled the argument advanced by Mr. Bupendrakuniar Mitra that of the divergence had now been sot at rest by the Privy Council decision in Bijai Saran Sahi v. Rudra Bageshwari Prasad AIR 1929 P.C. 288 and after giving the facts of that case he observes at page 951:

It was urged on behalf of the appellants before us that this decision by necessary implication overruled the decision in Kalu Sharip v. Abhoy Charan AIR 1921 Cal. 157 . Bhagaban Chandra Kundu Vs. Tarak Chandra Basak and Others, and Bhodai Sheikh Vs. Barada Kanta Dutta, . I am unable to agree with the learned advocate in this view of the matter. The case in Bijai Saran Sahi v. Rudra Bageshwari Prasad AIR 1929 P.C. 288 in my opinion, is clearly distinguishable from the present case, as also the eases which are said to have been overruled by implication. Bijai Saran Sahi v. Rudra Bageshwari Prasad AIR 1929 P.C. 288 there was nothing but the defendant''s mortgage to be set up against the plaintiff''s claim for possession--a mortgage which by itself gave to the defendants no right to possession--and therefore there was nothing valid in the eye of law to stand between the possession of the properties and the plaintiff who, as the purchaser of the equity of redemption, had stepped into the shoes of the owner thereof and was, therefore, as owner, entitled to the possession of the same. In the present case, as also in the eases in Kalu Sharip v. Abhoy Charan AIR 1921 Cal. 157 . Bhagaban Chandra Kundu Vs. Tarak Chandra Basak and Others, and Bhodai Sheikh Vs. Barada Kanta Dutta, which are said to have been by necessary implication overruled, the mortgagee had not merely his mortgage to set up as a shield against the claim for possession of the holder of the right of redemption but a decree of the Court and purchase by himself of the property in execution of the decree--a decree which way not altogether void. The Privy Council ease cannot, therefore, be said to be of any great assistance in the present matter.

The learned Judge then refers to the divergence in the views of the Bombay, Allahabad and Madras High Courts and the earlier decisions of the Calcutta High Court and observes:

But the weight of authority, at least in recent decisions of this Court, seems to be decidedly in favour of the respondents. Apart from the decision in Krishtopada Roy v. Chaitanya Charan Mandal AIR 1923 Cal. 274 the three decisions of this Court, viz., Girish Ghunder v. Iswar Ghunder Rai 4 C.W.N. 452. Habibullah v. Jugdeo Singh 6 CRI.L.J. 609 and Aghora Nath Banerjee v. Deb Narain Guin 11 C.W.N. 314 are in favour of the appellants. But the correctness of the decisions in Krishtopada Roy v. Chaitanya Charan Mandal AIR 1923 Cal. 274 and Habibullah v. Jugdeo Singh 6 C.L.J. 609 was doubted in Kalu Sharip v. Abhoy Charan AIR 1921 Cal. 157. and in Aghora Nath Banerjee v. Deb Narain Guin 11 C.W.N. 314 the mortgagee at the time when the mortgage suit was instituted was aware of the purchase of the equity of redemption. As regards the case in Krishtopada Roy v. Chaitanya Charan Mandal AIR 1923 Cal. 274 it is no doubt true that, Walmsley J. made one or two observations to indicate that the view taken by the Allahabad High Court in Hargu Lal Singh v. Gobind Rai 19 All. 541 and Madan Lal v. Bhagwan Das 21 All. 235 a view in support of the appellants'' contention--was the correct view to take. But Suhrawardy J. followed the decision in Aghora Nath Banerjee v. Deb Narain Guin (1907) 11 C.W.N. 314 on the ground that, as in the said ease, there was in the case before him, the fact that the mortgagee was aware of the purchase of the equity of redemption. The more recent decisions of this Court, among which I may mention the cases in Kalu Sharip v. Abhoy Charan AIR 1921 Cal. 157 . Bhagaban Chandra Kundu Vs. Tarak Chandra Basak and Others, and Bhodai Sheikh Vs. Barada Kanta Dutta, are clear authorities in support of the respondents'' contention that a mortgagee can bring a suit for possession against the holder of the equity of redemption who had been left out in the mortgage suit and a decree can be made in his favour as has been done in the present ease subject to the defendant''s right of redemption, a right which the decree in the present case has allowed him to exercise.

The learned Judge then dealt with the eases in Aghora Nath Banerjee v. Deb Narain Guin 11 C.W.N. 314 and Krishtopada Roy v. Chaitanya Charan Mandal AIR 1923 Cal. 274 and pointed out that in both of these cases the mortgagees were found to have knowledge of the purchase of the right of redemption and in spite of that knowledge they had left out the purchasers in their mortgage suits and observed that there was nothing in the present case to show that the plaintiffs were aware of the purchase by Ahmaddi of a part of the equity of redemption and thus distinguished the case of Aghore Nath Banerjee 11 C.W.N. 954. The learned Judge indicated e another point of view from which the ease may be considered:

If the defendant-purchaser had not been left out in the mortgage suit he could retain possession only on redeeming and not on anything else. This right of his has in no way been denied to him by the decree made in the present case. By the decree that has been made the defendant has not been prejudiced in any way. On the other hand, the decree has avoided multiplicity of suits and has done complete justice as between the parties.

In the same volume at p. 1193 ,Mullik J. in delivering the judgment of the Division Bench in the ease of Surendralal Kundu Vs. Ahmmad Ali, has put down all the cases in a useful paragraph which deal with this question at page 1195. The learned Judge then observes that the case before him had its exceptional features which would distinguish it from almost all the cases mentioned above, namely that the equity of redemption was wholly unrepresented and the plaintiffs when they brought their suit were aware of the purchase made by the defendants still they left them out in their suit brought on the mortgage, and lastly that the suit was instituted more than 12 years after the due date under the mortgage bond had expired. For these reasons, the learned Judge held that the case was on all fours with the case in Digambar Suthar and Others Vs. Suajan and Others, and that the equity of redemption being wholly unrepresented in the plaintiffs'' mortgage suit, the mortgage decree obtained by them so far as the property in suit is concerned, was nothing better than a nullity, and the plaintiffs on the basis of that mortgage decree had no title to the property. It was decided that the plaintiffs were undoubtedly the mortgagees of defendant 1 and as such mortgagees could enforce their right as against the purchasers of the equity of redemption if there was no bar against them either on the ground of limitation or on any other grounds. Jack J. observed that he agreed that the appeal should. He dismissed since under Article 132, Limitation Act, as against the purchasers of the equity of redemption the right of the mortgagees had become time-barred, and, therefore, the purchasers at the sale in execution of the mortgage decree (obtained in a suit to which they were not parties) are not entitled to any relief against them.

It is convenient to point out here that in a Full Bench decision of the Allahabad High Court in Ram Sanehi Lal and Another Vs. Janki Prasad and Others Sir Shah Muhammad Sulaiman, A.C.J., thus dealt with the case of Bijai Saran Sahi and Others Vs. Deo Kishen Prasad Bahadur Sahi and Others :

That was a case in which the defendants'' purchase of the equity of redemption was void and a nullity, and is therefore unlike the case in Mt. Sukhi v. Ghulam Safdar Khan AIR 1922 P.C. 11 where the purchase has been made without impleading the subsequent mortgagee. I am therefore, of opinion, that Bijai Saran Sahi and Others Vs. Deo Kishen Prasad Bahadur Sahi and Others does not in any way shake the authority of Sukhi''s case AIR 1922 P.C. 11.

After discussing a large number of cases the learned Chief Justice laid down three principles at page 1049:

The first principle is that the omission to implead a person interested in the mortgaged property in the suit does not make the whole suit defective and the proceedings null and void, but only frees the person excluded from all liability under the decree. No doubt Order 34, Rule 1, Civil P.C. lays down that all persons interested in the equity of redemption are necessary parties. But that rule is a mere rule of procedure and not of substantive law and is subject to the provisions of Order 1, Rule 9, which lays down that as far as possible no suit is to fail on account of nonjoinder of parties

and pointed out that it will be incorrect to say that the decree is null and void and the effect is the same as if the proceedings had never taken place and adhered to the opinion expressed by him in Nannu Mal Vs. Ram Chander and Others . The second principle deals with the right of subrogation and need not be, stated here. The third principle which relates to the interpretation of Section 52, T.P. Act, begins at p. 1051. At p. 1056 the conclusions of the learned Chief Justice show that the question in that case was between the purchaser in execution of a prior mortgage decree and the purchaser in execution of a subsequent mortgage decree. Mukherji J. in a separate judgment expressed his own views most elaborately. Banerji, Young and Pullan JJ. agreed with the judgment of the learned Chief justice.

The next case of the Calcutta High Court is Jagat Chandra De Vs. Abdul Rashid and Others, . In that case also, the competition was between the purchaser in execution of a decree on a prior mortgage and a purchaser in execution of a decree on the second mortgage, who was the defendant and who was not made a party to the earlier mortgage action. His defence was that the plaintiff was not entitled to possession because neither he nor the second mortgagee was impleaded as parties in the mortgage suit instituted by the plaintiff. Nasim Ali J., who delivered the judgment of the Division Bench, Khundkar J. agreeing, referred to the case in Umes Chunder v. Zahur Fatima 18 Cal. 164 and observed that the principle is now well established that

persons, who have taken transfers of property subject to a mortgage cannot be bound by proceedings in a subsequent suit between the prior mortgagee and the mortgagor to which they were never made parties.

He then addressed himself to the question as to what the position of the plaintiff is on the basis of his purchase and comes to this conclusion at page 78:

The position therefore is that the plaintiff on the basis of his purchase cannot claim the equity of redemption as against defendant 2 in whom the rights of the second mortgagee as well as the rights of the mortgagor are now vested. He can no doubt fallback upon the first mortgage, but he cannot recover possession on the strength of that mortgage, as that mortgage being a simple mortgage does not give him any right to possession. Whatever right the plaintiff may have under the first mortgage can no doubt be enforced by him by a proper proceeding taken for the purpose. This view appears to us to be supported by the principle underlying the decision of the Judicial Committee in Bijai Saran Sahi v. Rudra Bageshwari Prasad AIR 1929 P.C. 288 . The plaintiff''s claim for khas possession therefore must be dismissed.

The learned Judge then dealt with the contention that as the plaintiff had no notice of the second mortgage at the time when he brought the mortgage suit, the equities between the parties ought to be adjusted in the present g litigation. In other words the learned advocate''s argument was that defendant 2 must be compelled in this suit to redeem. But observed the learned Judge at page 79:

Redemption however is a legal right, which a person entitled to redeem may seek to enforce: it is not a liability, which he may be compelled to discharge: see Veetil Seethi Kutti v. Achuthan Nair 9 Ind.Cas. 513.

I have already observed above that Lord Carson approved of this statement of the law at p. 75 in the course of the argument in Bijai Saran Sahi v. Rudra Bageshwari Prasad AIR 1929 P.C. 288. The learned Judge then refers to the finding that the plaintiff had notice of the mortgage and points out that the proviso about notice contained in Section 85, T.P. Act, has of been omitted from Rule 1 of Order 34, Civil P.C. The learned Judge was prepared to give the plaintiff the rights of the first mortgagee.

but the real difficulty in the way of the plaintiff in this connexion is that 12 years from the date, when the mortgage money payable on the first mortgage became due, had elapsed before the institution of the present suit and consequently the plaintiff''s right to enforce the mortgage lien had become barred by limitation before the institution of this suit : see Bijai Saran Sahi v. Rudra Bageshwari Prasad AIR 1929 P.C. 288. There is no provision in the Limitation Act, under which the plaintiff, in view of the facts of the present case, can claim exemption from the bar of limitation.

The learned Judge then refers to Soni Ram v. Kanhiaya Lal 35 All. 227 and points to the observation of Sir John Edge who delivered the judgment of their Lordships that "when once time has begun to run, no subsequent disability or inability to sue stops it," and finally observed at p. 81:

It is true that, when defendant 2 purchased the property he purchased it subject to the first mortgage, but at the time, when the present suit was brought, the claim on the first mortgage had already become barred as against defendant 2. The plaintiff is therefore not entitled to get any relief in this suit. The view, which we have taken in this case, is supported by the decision of the Full Bench of the Allahabad High Court in Ram Sanehi Lal and Another Vs. Janki Prasad and Others .

Two other cases of the Calcutta High Court of the year 1938 to the same effect are Dhapubai Mini Vs. Chandra Nath Chakravorty and Others, and Guruprasad Sukul and Another Vs. Tarini Charan Debnath and Others, . The latest case of the Calcutta High Court (sic) on the point is the case in Bidhu Ranjan Sarkar v. Soleman Pramanik AIR 1914 Cal. 613. The head-note which is apposite to this question is as follows:

Where a person interested in the equity of redemption is left out of a mortgage suit, the question whether the remedy of the purchaser against the person left out is by way of a suit for possession or a suit for enforcement of his security itself will depend upon the fact as to whether the equity of redemption was or was not represented in the mortgage suit.

If the mortgagee himself or the person, in whom his rights were vested, was impleaded as a party defendant, but some person interested in the equity of redemption, as for example, a puisne mortgagee c was left out, then the purchaser, who acquires not only the rights of the mortgagee but the interests of the mortgagor as well, can sue for possession as purchaser of the mortgagor''s rights subject to his first mortgagee''s rights being redeemed by the puisne mortgagee and ho in turn being allowed to redeem the latter in his capacity as a mortgagor.

But when the equity of redemption is entirely unrepresented in the mortgage suit and the holder of the equity of redemption is not made a party to the mortgage suit, the position of the purchaser is not higher than that of an assignee of the mortgagee''s rights and he can only sue for enforcement of the mortgage bond.

Several of the cases of the Calcutta High Court were noticed. Mukherjee J., at p. 218 points out that in oases where a person interested in the equity of redemption is left out of a mortgage suit, there are two opposite principles which have been invoked by different Courts at different times for determining the rights of the purchaser at such sale. According to the Allahabad view which was accepted by the Calcutta High Court in Aghora Nath Banerjee v. Deb Narain Guin 11 C.W.N. 314 and Habibullah v. Jugdeo Singh 6 Cri.L.J. 609 the mortgage decree and the sale consequent thereon are of absolutely no effect against a person who was e a necessary party to the mortgage suit but was left out, and. the remedy of the mortgagee purchaser in such cases was to institute a suit upon the mortgage bond against the person who was omitted from the suit and pray for an order of sale. The learned Judge points out that the other view which was taken in a large number of decisions of the Calcutta High Court, of which Gangadas Bhattar v. Jogendra Nath Mttter 11 C.W.N. 403. Jugdeo Singh v. Habibullah 6 Cri .L.J. 612 and Niharmala Debee Vs. Sarojebandhu Bhattacharjya, may be taken as types, is that the purchaser acquires the property as it existed at the date of the sale discharged of the mortgage lien, but subject to the rights of those who were not made parties to the suit, and that the purchaser in such cases can sue for possession subject to the exercise of the rights of redemption by such persons. After giving these views the learned Judge observes to the effect given in the head-note which I have quoted above, and relies strongly upon the view of the Calcutta High Court in Digambar Suthar and Others Vs. Suajan and Others, . He also noticed at p. 219 that in some cases it has further been held that the mortgagee-purchaser would not be entitled to sue for possession if he were aware of the existence of the interest of any person whom he did not make a party in the mortgage suit, and referred to the case in Krishtopada Roy v. Chaitanya Charan Mandal AIR 1923 Cal. 274. Applying the principle to the facts of the case, the learned Judge held that the only person in whom the rights of the mortgagor were vested at the date when the plaintiff''s predecessor instituted the mortgage suit, was defendant 22, the landlord purchaser and he was not made party defendant at all so that the equity of redemption was wholly unrepresented in the mortgage suit. It, therefore, followed that the mortgagee purchaser could not maintain any suit for possession and his only remedy would be a suit to enforce his mortgage security. But as the suit upon the mortgage h was barred by limitation, the plaintiff could not ask the Court to have his suit for possession converted into one for enforcement of the mortgage bond. Accordingly the suit of the plaintiff, mortgagee-auction-purchaser, for possession was dismissed.

I now proceed to consider the cases of this Court. The earliest case is that in Gopal Ram Marwari v. Narwari Prasad Misser AIR 1916 1916 decided by Mullick J. sitting singly. He held that the owner of an equity of redemption, who has not been joined as a defendant in the suit upon the mortgage bond and who has been dispossessed by the mortgagee-decree-holder in execution of his decree, can sue for has possession and is not bound to sue for redemption. The question does not appear to have been well argued because the only case which was brought to the notice of the learned Judge was the case in Bunwari Jha v. Ramjee Thakur 7 C.W.N. 11. Mulliek J. observed thus at p. 402:

The reply to this is that there is no authority which goes so far as to lay down that the owner of the equity of redemption, who has been wrongfully dispossessed by a mortgagee-purchaser in execution o� his decree, can only bring a suit for redemption. It may be that he does not wish to redeem and that he wishes to obtain khas possession of the property. In that case there is no authority which debars him from suing for khas possession and declining to take the other redemption. The case in Bunwari Jha v. Ramjee Thakur 7 C.W.N. 11. is no authority for the proposition that as against a mortgagee-purchaser a person entitled to the equity of redemption who has not been joined in a suit cannot sue the purchaser for khas possession.

Earlier in the same year a division Bench decision of this Court was given in Balli Singh v. Bindeswari Tewri AIR 1916 Pat. 282 by Sir Edward Chamier and Jwala Prasad J. In that case in execution of a mortgage decree, the mortgagee himself purchased the mortgaged property and obtained formal possession, but before that suit was brought the defendants had purchased the property at a sale for arrears of revenue, the purchase being subject to the mortgage of the plaintiff. The plaintiff sued for possession and obtained a decree from the Courts below for possession if the defendants failed to pay the due on the mortgage within six months. Reversing the decision of the Courts below it was held that the plaintiff was not entitled to a decree for possession but was entitled to have the mortgaged property put up for sale, if the defendants failed to redeem. In delivering the judgment the learned Judges observed as follows at p. 136:

On behalf of the plaintiff-respondent it is vigorously contended that in a case of this kind the plaintiff is entitled to a decree for khas possession and we were referred to a number of cases on the subject. In all the cases referred to, it will be found that the person occupying the position of the plaintiff in the present suit was entitled to possession of the mortgaged property at the date of the suit. I take a common instance; A makes a simple mortgage in favour of B and subsequently a similar mortgage in favour of Order B sues A on the mortgage without impleading Order He obtains a decree, brings the property to sale and purchases it himself. By that purchase he acquires the right to possession of the mortgaged property which up to that time had been enjoyed by the mortgagor. C not having been made a party to the suit brought by B had no opportunity of redeeming B, and in a subsequent suit brought by B to enforce possession of the property, C must be given an opportunity of redeeming B, but if he fails to redeem, B will have a decree for possession of the property, not for sale of the property. The reason why he gets e a decree for possession of property is that at the data of the suit he was entitled to possession of the property against all the world. In the present case the suit brought by the plaintiff on his mortgage was brought against the original mortgagors, but the interest of the original mortgagors in the villages with which we are now concerned had at that time passed at the revenue sale to defendant 3 to 12, so that the purchase at the execution sale of the rights of the mortgagor did not give the present plaintiff a right to possession of the property against the purchaser at the revenue sale. Consequently, if defendants 3 and 9 fail to redeem, the plaintiff is not entitled to a decree for possession, but he is entitled to the ordinary remedy of a mortgagee, namely, to have the mortgaged property put up for sale.

In Sheo Narain Sahu Vs. Ram Nirekhan Ojha, . Das J. sitting singly took the view that the purchaser of an equity of redemption, who has been left out of a mortgage action, is entitled to claim partial redemption, and may also be compelled to redeem that portion of the mortgaged property in which her may be interested, and referred to the cases in Hari Kissen Bhagat v. Veliat Hossain 30 Cal. 755. 11 C.W.N. 403 and Hamida Bibi v. Ahmad Hussain 31 All. 335. In Birinchi Singh Vs. Sarado Prasad Mukherji and Others, the facts were that a puisne mortgagee failed to implead in a suit on his mortgage a prior mortgagee who had purchased a part of the property in satisfaction of his own mortgage, and the purchaser in execution of that decree sued the prior mortgagee for possession. It was held that the plaintiff was entitled to a decree for possession only if the defendant failed to redeem the mortgage with respect to the share which he had purchased from the mortgagor. Jwala Prasad J. who delivered the judgment referred to a quotation from Jones on Mortgage that:

The sale vests the estate in the purchaser subject to redemption by the person interested in it who was not made a party to the proceedings. His only remedy however is to redeem. He cannot maintain ejectment against the purchaser. He cannot have the sale set aside by intervening by petition in the foreclosure suit. His only right is the right of redemption.

It will be noticed that this was a case in h which it was only the prior mortgagee who was left out although he had become the purchaser of a portion of the mortgaged property.

In Mt. Nand Kuer v. Kunj Behari Lal AIR 1927 Pat. 411 the mortgagee did not implead a mokarraridar of the mortgaged property in his mortgage suit, and having obtained a mortgage decree purchased the property in execution thereof and got a writ of delivery of possession but on resistance from the mokarraridar instituted a suit praying for possession after an opportunity being given to the mokarraridar to redeem the mortgage. Rosa J. who delivered the judgment, Kulant Sahay J. agreeing, relied upon the cases in Hargu Lal Singh v. Gobind Rai 19 All. 541. Madan Lal v. Bhagwan Das 21 All. 235 and Balli Singh v. Bindeswari Tewri AIR 1916 Pat. 282 and observed as follows:

When the plaintiff brought his suit on the mortgage, defendant 1 was in possession and the plaintiff was not entitled to claim possession from defendant 1, but only to bring a suit for sale. The fact that he did not make defendant 1 a party to the mortgage action cannot improve his position. The position now must be as it was then so far as the appropriate remedy is concerned and the authorities above cited make it clear that this remedy is a suit for sale.

Accordingly they allowed the suit to be converted into a suit for sale, but as the question whether the plaintiff had or had not notice of the mukarrari interest of the defendant at the date when he instituted the suit on the mortgage, was not decided, the appeal was remanded to the Subordinate Judge for a definite finding as to whether the plaintiff had or had not due notice of the interest of the mukarraridar.

In Bhekdhari Mahton v. Radhika Koer AIR 1934 Pat. 648 a mortgagee omitted to implead as defendant the Secretary of State who had served a notice upon Bhagwan Hajam in whom the equity of redemption was vested after the mortgage. By the authority of Section 8, Public Demands Recovery Act, from and after tho service of notice of any certificate u/s 7 upon a certificate-debtor the amount due from time to time in respect of the certificate shall be a charge upon such property. Khaja Mohamad Noor J. who delivered the judgment of the Division Bench, Agarwala J. agreeing, observed as follows at page 369:

Now under the law, viz., Order 34, Rule 1, Civil P.C. it was incumbent upon Kajendra (that is to say, the mortgagee) to implead in the mortgage suit the Secretary of State who held a subsequent mortgage of the property in question, the mortgage having been created by the operation of law prior to the institution of the mortgage suit. This not being done the Secretary of State and Angnu who purchased the property in enforcement of that mortgage are not bound by the proceedings which took place in the suit instituted by Rajendra. Nor is the sale of the property in any way binding upon them and their right of redemption remains absolutely intact. This is the view which has been taken by this Court in a fairly large number of cases. Among them I may mention the following: Sheo Narain Sahu Vs. Ram Nirekhan Ojha, . Amirchand v. Moti Pande AIR 1931 Pat. 434. Mt. Azizummissa v. Komal Singh AIR 1930 Pat. 579 and Raghunath Prasad Singh v. Sadhu Saran Prasad Singh AIR 1925 Pat. 31.

and proceeded to pass a decree in the terms laid down in Balli Singh v. Bindeswari Tewri AIR 1916 Pat. 282.

I am of opinion that we must follow the course which has been consistently taken in this Court from the year 1916 onwards. The apparently contradictory decisions may be reconciled if it is kept in view that where an equity of redemption is wholly or in part unrepresented the sale in execution of a decree on such mortgage suit cannot affect the rights of the owner of the equity of redemption who is in possession either on a transfer from the mortgagor or as an auction-purchaser in the sale in execution of a decree against the mortgagor. But where all that had been left out is a simple encumbrancer who at the date of the mortgage suit was not in, or entitled to possession, then only the right o� redemption must be given to him. Where art auction-purchaser in such a mortgage decree, sale is the plaintiff and has failed to obtain. possession no difficulty in law or in equity-can ever arise because it is he who is to blame himself if he has slept over his rights for a, long time and has not enforced his possession,: on the foot of such a sale. He cannot complain if his suit for possession is converted). into a suit for sale on the foot of the mortggage bond, the period of limitation to be reckoned from the date of his knowledge of the encumbrance as was done in Balli Singh v. Bindeswari Tewri AIR 1916 Pat. 282 and Mt. Nand Kuer v. Kunj Behari Lal AIR 1927 Pat. 411.

At one time I was inclined to take the view that it would be inequitable if the rights of such a mortgagee auction-purchaser in possession as a defendant are sacrificed and that the rights of the parties should be worked out, in the suit instituted by the owner of the equity of redemption who was left out in the, mortgage suit and now seeks for possession. But on further consideration I am of opinion that it would be wrong to convert a suit for possession by a plaintiff into a suit for sale by a defendant subject to the rights of redemption by the plaintiff. Jones in his well-known book on Mortgage, Edn. 8, has dealt with the matter in the same way:

Para. 1792: "If the mortgagor continues to own any part or interest in the title mortgaged, he is as necessary a party to foreclosure as he would be if he, continued to own the whole. If the mortgagor has. conveyed away only a portion of the premises, and remains owner of the residue, he may still be regarded as a necessary party, and the purchaser of the part only a proper one, because a decree against the mortgagor alone would have something to act upon, and a decree against the purchaser of a portion of the property is not indispensable, though the portion sold to him would remain unaffected if he was not made a party. To bind him he must be made a party.

Para. 1793:

The owner of the equity of redemption by purchase from the mortgagor is, of course, an essential party to a bill to bar the equity by foreclosure. Such owner is in fact the only necessary party defendant, and suit to foreclose the mortgage may be brought against the grantee purchasing the mortgaged premises without joining the mortgagor. Equally with the mortgagor he is unaffected by any foreclosure proceeding to which he is not made a party, and, moreover, the decree is generally regarded as void." (Reference is made to the oases amongst others in Boggs v. Fowler (1860) 16 California 559. Skinner v. Buck 29 California 253.... Unless the owner of the equity of redemption is made a party, a purchaser at foreclosure acquires no title whatever to the mortgaged premises, although the mortgagor and subsequent incumbrancers may have been made defendants. Such a purchaser, remains a stranger to the title, and the sale operates merely as an equitable assignment of the mortgage to him.

Dr. Ghosh in Ms famous book on the Law of Mortgages in India, Edn. 5, vol. I, makes these observations at page 656 after pointing out that if the suit has been properly constituted, that is, if the mortgagor and all subsequent assignees are parties to it, the title of the purchaser will be absolute, relating back to the time of the execution of the mortgage:

But it has been pointed out in one case that it would be more correct to say that the mortgagee sells the property discharged of Ms own lien. In this view, if the owner of the ulterior equity of redemption is not a party to the suit, the purchaser cannot claim the position of an assignee of the security, as it would still remain in the mortgagee. And this seems to be the law also in America, where the general rule that the security is transferred to the purchaser does not hold good if the owner of the equity of redemption, who is said to be the only necessary party, is not made a defendant. In all other cases, the security passes to the purchaser; for the sale, though it fails to be effectual in every other respect, operates as an assignment of the mortgage to the purchaser who may, if he chooses, proceed de novo to foreclose those who were not represented in the suit. Thus, in the case of a derivative interest created by the mortgagor, as, for example, where he has carved a tenure out of the mortgaged property, though the Court cannot, in the absence of the tenant, sell anything except the security of the creditor and the outstanding right of the debtor, namely the right of the former to a charge on the land and of the latter to the reversion, the purchaser as assignee of the lien can require the lessee to redeem him, and on the latter''s failure to do so, he may call for a sale of the property. And this would seem to be the only courses open to him, if the mortgage security was impaired by the creation of the term. On such sale, he would be entitled to a first charge on the proceeds to the extent to which the purchase money was applied in payment of the mortgage debt.

Then at page 658 he proceeded to deal with the difference between the position of a person who has acquired a partial interest in the mortgaged premises, who can only be foreclosed, and that of a mere incumbrancer who may be redeemed by the purchaser as standing in the place of the mortgagor, and who, if the purchaser does not choose to redeem, can only call for a fresh sale of the mortgaged property, when the proceeds will be distributed in accordance with the respective rights of the parties.

In my opinion the distinction thus pointed out by Dr. Ghosh and Jones is the key to the solution of the difficult problem. If the person who has been left out in the mortgage action was in possession or entitled to possession on that date as the representative of the equity of redemption or was the person in whom the equity of redemption lay in full or in part then the sale in his absence is not binding on him and he cannot be forced to redeem. He may, if he likes, institute a suit for possession only. The remedy of the auction-purchaser, be he the mortgagee decree-holder himself or a third person, is no more than to bring a suit for sale because the rights as a mortgagee only are unaffected and such rights will remain in him if he is the mortgagee auction purchaser himself--and if a third person, he be considered as the assignee of the mortgagee.

But it was argued on behalf of the appellant that the ease of their Lordships of the Judicial Committee in Mt. Sukhi v. Ghulam Safdar Khan AIR 1922 P.C. 11 settles the controversy in his favour. Having read that case carefully once again I do not agree with this contention. In that case it was a puisne mortgagee who was not made a party to a suit in which the prior mortgagee had obtained a decree. Their Lordships pointed out the difference in the result which now obtains after Section 89, T.P. Act, has gone and the group h of Sections 85 to 90 inclusive of the Transfer of Property Act, 1882, were repealed by the Code of Civil Procedure, 1908, and were replaced by the rules under Order 34. I am quoting from the judgment of Lord Dunedin at p. 472:

Now the words being gone their Lordships feel no difficulty in holding that the law remains as it certainly was before the Transfer of Property Act, 1882--namely, that an owner of a property who is in the rights of a first mortgagee and of the original mortgagor as acquired at a sale under the first mortgage is entitled at the suit of a subsequent mortgagee who is not bound by the sale or the decree on which it proceeded, to set up the first mortgage as a shield. From this it follows that the omission by the respondent Ghulam Safdar Khan to make the plaintiff a party to the suit instituted by him to execute his mortgage of 1883 does not prevent him from setting up that mortgage in cases where he would have been so entitled before the Act of 1882; and the present dispute is within the benefit of this ruling." A little later at p. 473 it is observed:

The situation, however, must be looked at more closely than this. The general principle is stated rightly by the High Court. It is this: ''The plaintiff is a puisne mortgagee seeking to enforce her mortgage, the prior mortgagee in his suit having failed to make her a party. It is the duty of the Court to give the plaintiff the opportunity of occupying the position which she would have occupied if she had been a party to the former suit.

Reliance is placed strongly on the passage that the plaintiff, as in the present case, must be given an opportunity to occupy the position which he would have occupied if he had a been a party to the former suit, and it is argued that the position which he had at that time was to redeem. But the answer to the contention is that not only he had a right to redeem at that time but also a right to be in possession. Both these rights can only be taken away by a fresh suit to enforce the mortgage security. The remedy suggested in the argument merely forces him to redeem, which as I have shown above, he cannot be compelled to do so. He can insist on remaining in possession unless the property is sold in a properly constituted suit in his presence. It is common ground that a suit to enforce the mortgage its now barred by limitation. For these reasons, on a most anxious consideration of difficult situation, I am of opinion that the Courts below have taken a correct view.

The appeal fails and must be dismissed with costs.

Shearer J.

I agree.