(1.) This appeal arises out of a suit upon a mortgage. The mortgagors defendants did not appear. The defendant No. 5, who had purchased one of the properties mortgaged (property No. 3) at a sale held in execution of a rent decree, filed his written statement on the 10th August 1908, in which he pleaded inter alia that the property purchased by him could not be made liable under the plaintiff s mortgage and stated that he came to know of the mortgage only when he received summons in the present suit and at once filed a petition under Section 167, Bengal Tenancy Act, to the Collector for annulling the incumbrance, and that the 24th August, 1908, had been fixed for the disposal thereof.
(2.) The Court of first instance held that the plaintiff s mortgage could not bind the property purchased by the defendant No. 5 and dismissed the suit as against him and passed the usual mortgage decree against the other defendants with respect to the remaining properties.
(3.) On appeal by the plaintiffs, the learned Subordinate Judge held that it is settled law that a purchaser of property in execution of a rent decree has priority over a purchaser under a mortgage decree and ordered that the mortgaged property No. 3 be sold subject to the first charge of defendant No. 5 and allowed the plaintiff 6 months time to redeem the charge of the defendant No. 5, and further ordered that upon plaintiff s redeeming the said charge, the mortgaged property will be sold free from the defendant s charge.