Decided on January 04,1900

MEHRBANO Appellant
NADIR ALI Respondents


Blair and Burkitt, JJ - (1.) IN this case the contending parties are practically the first and second mortgagees or their representatives. The first mortgagee, who is represented by the plaintiffs-respondents, sued upon his mortgages, obtained decrees for sale, and in execution purchased the mortgaged property. To his suit he did not make the puisne mortgagee a party, as he was bound to do under the provisions of Section 85 of the Transfer of Property Act. The puisne mortgagee, who is represented by the defendant-appellant, in his turn instituted a suit upon his mortgage: he did not make the latter a party to his suit. The puisne mortgagee obtained a decree for sale, and has now put up and advertised the mortgaged property for sale. Thereupon the plaintiffs, the representatives of the prior incumbrancer, have instituted this suit, in which they ask for a declaration that that property is not liable to be sold in execution of the decree held by the defendant puisne mortgagee. A decree has been given by the Lower Appellate Court in terms of the prayer for relief. The meaning of the decree under appeal we take to be that the defendant the puisne mortgagee cannot bring to sale the mortgaged property in execution of a decree in a suit to which the prior mortgagee was no party. If that is the meaning of the decree it is, in our opinion, a perfectly right decree. For our authority we refer to the case of Janki Prasad V/s. Kishen Dat (1894) I.L.R. 16 All. 478; at pp. 482, 483. Broadly stated, the effect of the ruling in that case is that a mortgagee, who has obtained a decree for sale in a suit to which he did not make other mortgagees parties, cannot bring the mortgaged property to sale in execution of that decree. It is immaterial that in the case we have just cited the parties who were prevented from bringing the mortgaged property to sale were the first mortgagees, and that in this case the party sought to be prevented from bringing the mortgaged property to sale is the representative of the second mortgagee. INdeed, the case would be, if anything, stronger against the second mortgagee than against the first mortgagee. IN our opinion the defendant-appellant here is not entitled to bring this property to sale in execution of the decree for sale which she holds. It may be that in a properly constituted suit with a proper array of parties and in a suit in which she offers to redeem the prior mortgages the appellant may be entitled to bring the property to sale after such redemption. As to that matter, however, it is unnecessary for us to express any opinion. We think that the decree of the Court below as interpreted above is a correct decree. We dismiss this appeal with costs.;

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