- (1.)In this case 8 annas of certain property was mortgaged to one Surju Mani, who disposed of 3 annas, 10 gandas of that 8 anna. share to one Raj Chandra, the special appellant before us. These two parties sue in this suit to recover possession of the lands, after foreclosure of the mortgage. The defendant pleaded non-service of notice, limitation, and payment of the mortgage-debt. The first Court gave the plaintiff a decree. The lower appellate Court has reversed that decision. The lower appellate Court has found that the notice was duly served on the mortgagor, but it has held that inasmuch as the purchaser of the 3 annas, 10 gandas share was not a party in the foreclosure proceeding, the foreclosure was not completed so far as regarded his share. The lower appellate Court has accordingly dismissed that part of the plaintiff's suit which had regard to the 3 annas, 10 gandas belonging to the purchaser Raj Chandra.
(2.)The plaintiff, Raj Chandra, appeals to this Court, and urges that the lower appellate Court was wrong in dismissing his suit as to the 3 annas, 10 gandas, inasmuch as the foreclosure of the mortgage by the original mortgagee was valid in law to confer an absolute title in the whole property mortgaged, upon herself, and anybody holding from or under her.
(3.)We think this contention good. The law on this point is to be found in section 8, Regulation XVII of 1806. That section says: "Whenever the receiver or bolder of a deed of mortgage and conditional sale may be desirous of foreclosing the mortgage, and rendering the sale conclusive, on the expiration of the stipulated period, or at any time subsequent before the sum lent is repaid, he shall apply by a written petition, &c. &c." The whole question therefore in the foreclosure proceeding is confined between the mortgagor on one side, "the receiver or holder" of the deed of mortgage on the other. It is found in this case, by the lower appellate Court, that the foreclosure was duly carried out by at least the "receiver" of the deed of mortgage, that is the original mortgagee; and so far therefore as these proceedings were concerned, the foreclosure was good as regards the whole property covered by the mortgage-deed. We think therefore that the lower appellate Court was wrong in dismissing the plaintiff Raj Chandra's suit as regards the 3 annas, 10 gandas, on the ground that he was not a party to the foreclosure proceedings; and in this view we reverse the judgment of the lower appellate Court, and restore and affirm that of the first Court, with costs of this Court and of the lower appellate Court.