Wanchoo, C. J. - (1.) THIS is an appeal by Bhairon Ratan defendant against the judgment and decree of the District Judge of Bikaner decreeing the suit brought by Maganmal, plaintiff-respondent, against the defendant-appellant.
(2.) THE case of the plaintiff was briefly this. One Radhakishan obtained a money decree against Harikishan in 1950. That decree was put in execution and the plaintiff purchase a house belonging to Harikishan in auction sale on the 6th of April 1953. THE sale was confirmed on the 7th of May 1953 and certificate of sale was issued in favour of the plaintiff. THE plaintiff got possession of part of the house before he filed the present suit and we are told that he is now in possession of the entire house, Bhairon Ratan is the brother-in-law of Harikishan. He brought a suit on the 30th of May 1953 against Harikishan on the basis of an equitable mortgage. To that suit Maganmal was not made a party,even though the house had already been purchased by him and a sale certificate had been issued in his favour on the 15th of May 1953. This suit was decreed on compromise on the 31st of July 1953. THEreafter Bhairon Ratan put the decree in execution by sale of the house. When this happened Maganmal came to know of this decree. He thereupon filed the present suit on the 18th of December 1953. His case was that the so called equitable mortgage on the basis of which Bhairon Ratan had obtained his decree was a sham transaction between two near relations. He also said that as he had purchased the house before Bhairon Ratan brought his suit and as he was not made a party to Bhairon Ratan's suit, the decree obtained by Bhairon Ratan against Harikishan could not be executed against him after he had obtained possession of the property. He further said that he did not based his claim on the allegation that the equitable mortgage was a shaw transaction; he based it only on the ground that as he had not been made party to the suit by Bhairon Ratan, the decree obtained by Bhairon Ratan against Harikishan could not be executed against him. Consequently no issue was framed by the trial court on the question whether the equitable mortgage was sham transaction. THE two main issues which arose on the case put forward by the plaintiff were these: - (1) Was the plaintiff an auction-purchaser of the suit property a necessary party in civil suit No. 15 of 1953 of this Court in which the decree in question was passed? P. (2) If so, is the consent decree passed on 31. 7. 1953 in that suit void and ineffective as against the plaintiff and the house in question is not liable to sale in execution of that decree? There were other issues, but they are not material for present purpose. The trial court held that Maganmal was a necessary party to the suit filed by Bhairon Ratan against Harikishan in view of the fact that he had purchased the equity of redemption of this house in auction sale on the 6th of April 1953. Consequently the court held that as Maganmal was not made a party in that suit, that decree was not binding on him and the property which was in possession of Maganlal could not be sold in execution of the decree obtained by Bhairon Ratan against Harikishan. The trial court therefore granted a permanent injunction against Bhairon Ratan executing that decree against Maganmal. Hence this appeal. We are of opinion that the decision of the trial court on the two issues is correct. The law on the point is well settled, namely that where an auction purchaser has purchased the equity of redemption, he is necessary party to any suit brought by the mortgagee to enforce the mortgage and if he is not made a party, the decree is ineffective against his rights and if he is in possession, he cannot be dispossessed by sale in execution of such a decree Sec. 21 of the Transfer of Property Act and Order XXXIV Rule 1 of the Civil Procedure Code are conclusive on the point and show that an auction purchaser of the equity of redemption is a necessary party to a mortgage suit. We may in this connection refer to the following cases; - In Sind Bank Lt. vs. Amersi Dyal (1 ). it was held that if a mortgagee omits to make the owners of interests or liens created after the mortgage came into existence, their right and liabilities are not affected. In Tukaram alias Tularam Mahadji Izardar vs. Eknath Punjappa (3) it was held that a mortgagee who forcloses his mortgagor behind the back of the owner of the equity of redemption or other persons interested in the equity, does not get the right to sue for possession of the property as against the transferees of the equity of redemption who are not parties to the suit. The only remedy of the mortgagee is to bring a suit against such transferees to have his right declared to sell or foreclose the property. In Kowtha Sooryanarayana Rao vs. Sarup Chand Rajaji (3) it was held that the right of a second mortgagee or of a purchaser of the equity of redemption who is left out of a mortgage suit filed by a first mortgagee remain altogether unaffected by such suit and by the sale in execution of the decree therein. The necessary corollary and consequence of this principle is that if the rights 6f parties who were not impleaded remain unimpaired, the rights of the person who failed to implead then should remain unimpaired too. In the present case, it is true that Maganmal did not purchase the equity of redemption as such; what he purchased was the entire property. But assuming that this equitable mortgage existed and was not a sham transaction as stated by Maganmal, he would certainly be deemed to have purchased the equity of redemption at least in this auction sale. Therefore, he was' a necessary party to the mortgage suit brought by Bhairon Ratan. As he was not made a party to that suit, he is not bound by the decree passed in that suit and cannot be dispossessed by sale in execution of the decree from the property which is in his possession. The view, therefore, taken by the District Judge is correct We need not refer to case which deal with situation where the equity of redemption is sold during the pendency of the mortgage suit. Different considerations may arise in those cases. But where the equity of redemption has been sold before the mortgage suit is filed, the purchaser of the equity of redemption is a necessary party and consequences will be as indicated by us above. Learned counsel for the appellant drew our attention to (Sheikh) Kalu Sharif vs. Abhoy Charan Karmakar (4 ). In that case the auction purchaser was not in possession. It also appears that the auction purchaser purchased the property knowing full well of the existence of the mortgage and the auction sale was subject to the mortgage. The possession was obtained by the mortgagee after he had got the decree on his mortgage. In those circumstances, it was held that though the right of the auction purchaser of the equity of redemption remained unaffected, the fact that he was not made a party to the mortgage suit would not mean that the mortgagee was bound to deliver possession to the auction purchaser and that the remedy of the auction purchaser in such a case was to redeem the mortgagee in possession. The facts of the present case are entirely different. Here it is the auction purchaser who is in possession and not the mortgagee. The mortgagee wants to dispossess the auction purchaser by sale in execution of his decree in a suit which the auction purchaser was not a party. We are of opinion that in these circumstances it is the mortgagee who has to file a suit on the mortgage against the auction purchaser in possession if he wants to sell the house. There is no force in this appeal and it is hereby rejected with costs. .;