RAM SARAN Vs. ABDUL GHAFFAR

JUDGEMENT

(1.) This appeal must be allowed and the decision of the trial Court must be restored. There is nothing in law to prevent a person holding two independent mortgages over the same property from putting the subsequent mortgage into suit first and then bringing a second suit on the basis of the first mortgage held by him, provided that while bringing a suit on the basis of the second mortgage he proclaimed the existence of the first mortgage over the property mortgaged. If a mortgagee having two mortgages over the same property puts the later mortgage into suit and discloses the existence of the first mortgage and obtains a decree for sale on the basis of the second mortgage for sale of the property subject to the prior mortgage, and that decree is put into execution and the property is sold subject to the prior mortgage, the auction-purchaser purchases the property subject to the first mortgage, and it is not open to him to resist a suit for sale on the basis of the first mortgage on the ground that the property once having been sold in execution of the decree obtained by the mortgagee on the basis of the second mortgage, is not liable again to be sold in execution of the decree obtained on the basis of the first mortgage. The proposition of law enunciated above finds support from the Full Bench decision of this Court in Sundar Singh V/s. Bhalu [1898] 20 All. 322. It is to be noted that the observation of the learned Judges in that case that one thing is quite clear, that the plaintiffs cannot sell the property twice over, and they cannot sell under the second decree subject to the first cannot now be held to be good law inasmuch as that observation was based on the Full Bench decision of this Court in Mata Din V/s. Kazim Husain [1891] 13 All, 432 (F.B.), and the binding nature of that decision has been taken away by the later Full Bench decision of this Court in Ram Shankar Lal V/s. Ganesh [1907] 29 All. 385. In view of the provisions of Order 34, Rule 1, Civil P. C, it cannot be doubted that it is open to a subsequent mortgagee to put his mortgage into suit without impleading the prior mortgage. That being so, it is open to a person holding two mortgages over the same property to put his second mortgage into suit without claiming to enforce his first mortgage provided he expressly declares his intention of reserving his rights as a prior mortgagee and claims to sell the property in enforcement of the second mortgage subject to his rights as a prior mortgagee.

(2.) In the suit giving rise to the present appeal it was agreed in the Courts below that the plaintiff had four mortgages over the property in dispute. He put the last mortgage into suit and obtained a decree. In suing on the last mortgage he had disclosed existence of the previous mortgages and prayed for sale of the property subject to the encumbrance evidenced by those mortgages. A decree was eventually passed in his favour and in execution of that decree the property in dispute along with some other property was sold subject to the prior mortgages. The property in dispute was purchased by defendant 2 who is the contesting respondent before us. Then the plaintiff brought the suit giving rise to the present appeal for enforcement of an earlier mortgage held by him. The trial Court held that he was entitled to a decree for sale of the property purchased by the contesting respondent in terms of the reliefs prayed for in the plaint.

(3.) The lower appellate Court agreed with the findings of the trial Court on all points except one. It held that the plaintiff was not entitled to sell the property in dispute a second time in enforcement of his prior mortgage and as such was not entitled to get a decree against the contesting respondent. In view of this finding the lower appellate Court reversed the decree of the trial Court and dismissed the plaintiff's suit. I have given my reasons for disagreeing with the view of law taken by the lower appellate Court and for agreeing with the trial Court in holding that the plaintiff is entitled to get a decree for sale of the property purchased by the contesting respondent and to enforce the decree by sale of the property in his hands. The other points on which the suit of the plaintiff was resisted by the contesting respondent in the Courts below were found against him by both the Courts below and the findings of those Courts have not been assailed in argument before us. The result is that I would allow the appeal, set aside the decree of the lower appellate Court and restore the decree of the trial Court with costs in all Courts. Ashworth, J.