HAR SAHAI Vs. MUKKARRAM HUSSAIN

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by the respondent for redemption. On the 20 of March 1880, an 8 biswa share in village Rampura was mortgaged to Ram Lal, On the 5 of June 1880, a second mortgage of a 3 biswa share out of the 8 biswas was mortgaged to the respondent. The prior mortgagee brought a suit on his mortgage and got a decree for sale. He did not make the puisne mortgagee a party. In execution of the decree under the first mortgage the 8 biswa share was purchased by the appellant Har Sahai. The respondent brought a suit on his second mortgage and got a decree for sale on the 30 of June 1885. The appellant got possession of the share he had purchased on the 20 of August 1885. The puisne mortgagee did not make the prior mortgagee a party to his suit nor did he make the auction-purchaser Har Sahai a party. It is not shown that at the time when the respondent brought his suit the auction-purchaser had acquired any interest in the property or that if he had, the puisne mortgagee had any notice of it. In execution of the decree which the respondent got on his puisne mortgage he brought the 3 biswa share to sale and purchased it himself on the 21 of January 1895. He now seeks to redeem that 3 biswa share on payment of a proportionate amount due under the first mortgage. The Court of first instance decreed the suit and that decree was affirmed on appeal by the learned District Judge. Har Sahai comes here in second appeal. One of the pleas raised was that the respondent must redeem the entire share by payment of the whole amount due under the first mortgage. There would have been force in this plea, but on the respondent expressing his willingness to do this, the plea was abandoned by the appellant. The only plea urged before me is that the appellant in virtue of his purchase is entitled to redeem the plaintiff. No such plea was advanced in the Courts below and I am of opinion that it is without force. In support of it the learned Vakil for the appellant relies on the decision in the case, Hassanbhai v. Umaji 28 B. 153. But the facts of that case are clearly distinguishable from those of the present case. Even if it were held that the prior mortgagee stands in the shoes of the mortgagor, the mortgagor's right of redemption no longer exists inasmuch as a decree was passed on the puisne mortgage and the property sold in execution of that decree. It appears to me that the respondent has not lost the right of redemption which he obtained by his mortgage and that the decision of the Courts below is right. The result is that I dismiss this appeal with costs including fees on the higher scale.