JUDGMENT
Markby, J.
1. (after stating the facts of the case, continued): The plaintiff has appealed. One ground taken in special appeal is, that the sale by the Court of Nuddea in execution of the decree of the Court of Hooghly could not transfer more than the rights and interests of the mortgagor: and that the Court of Hooghly had no jurisdiction to make a decree which would affect the rights of Chundermoney. But the Hooghly Court had jurisdiction to give a decree for the debt due under the mortgage-bond, and it had also jurisdiction to transfer that decree to any other Court for execution. So also the sale by the Court of Nuddea, to which the decree had been transferred, was perfectly regular; and I can see no objection to our dealing with this case precisely as if the property had been sold in execution of a decree of the Nuddea Court for the debt due under the mortgage-bond. What then would have been the effect of a sale in execution of such a decree of the Nuddea Court? It would, according to the Full Bench decision referred to by the District Judge, be just as effectual as a sale in execution of a decree which expressly ordered the mortgaged property to be sold. Upon that point, the decision of the Full Bench is clear and conclusive.
2. The important question is what is the effect of such a sale upon the rights of Chundermoney, who derives her title from a grant by the mortgagor posterior to the mortgage-bond?
3. It is, I think, clear law, that the mortgagor cannot, by a subsequent grant, derogate from the rights of his mortgagee to be paid his principal, interest, and cost out of the property pledged; and that the proper, and indeed the only, mode for the mortgagee to realize his money under a mortgage of this kind (i.e., an ordinary Bengalee bond pledging the land) is to get a decree for it and to bring the mortgaged property to sale by process of execution. The great difficulty is to determine how such a sale by the first mortgagee affects persons claiming under grants or mortgages subsequent to the creation of the first mortgage-security.
4. Prior to the Full Bench decision in the case of Syud Emam Momtazuddeen Mahomed v. Rajcoomar Doss (23 W.R., 187) there never had, I think, been any substantial doubt that the first mortgagee had a right to bring to sale the mortgaged property as it stood at the date of the encumbrance. It was, however, supposed that this must be done by obtaining what was called “a decree declaring the lien,” as distinguished from a “money decree.” It was also pretty well settled, or at any rate by that decision it was made clear, that upon a sale by the mortgagee, whatever might be the form of his decree, all his own rights as well as those of the mortgagor in the mortgaged property passed to the execution-purchaser.
5. That decision, however contrary to a notion which had up to that time received considerable countenance, lays down that a sale upon a decree “declaring the lien” gives no rights to the purchaser in execution as against subsequent encumbrancers which he did not possess under a sale upon a “money-decree.”
6. Of course, this leaves the question as to what these rights are undetermined. There are, however, some expressions in the judgment delivered by Sir Richard Couch, which at that time seemed to me to imply, that under a sale in execution by a mortgagee in a suit to which the mesne encumbrancers were not parties, the purchaser took subject to the rights of the mesne encumbrancers.
7. It was under the impression that this was the meaning of Sir Richard Couch’s judgment that I gave my decision in Gopee Bundhoo Shantra Mohapattar v. Kalee Pudo Banerjee (23 W.R., 338). I may observe, however, in passing, that that decision did not in reality depend at all upon any question touched upon by the Full Bench judgment. The basis of that decision is the principle laid down by Mr. Justice Macpherson in Section M. Kamini Debi v. Ramlochan Sirkar (5 B.L.R., 450), and which has been since acted on, that a mortgagee, purchasing his own security, can still be redeemed on payment of principal, interest and costs.
8. Upon a reconsideration of the Full Bench judgment. I do not think it decides anything as to the position of subsequent encumbrancers after a sale in execution in a suit by the mortgagee to which they are not parties. I do not think it even decides that subsequent encumbrancers have as a general rule any rights as against the execution-purchaser. It only decides that, if they have any rights, those rights are not affected by the decree. But it seems to me by no means to follow that because the rights of third parties cannot be affected by a decree inter alia, that the present plaintiff’s suit must be dismissed.
9. We pressed the learned pleader who appeared for Chundermoney Dabia to state what the rights are which she now claims. This he found it extremely difficult to do. He did not go so far as to say that she held the zamindari right clear of all claims whatsoever. He seemed disposed to say that Chundermoney had a right to pay off the mortgage, and so to become absolute owner of the zamindari. But even if Chundermoney could by this means become, as against the plaintiff, the owner of the zamindari, that does not show that she is the owner of the zamindari now. The transaction by which the zamindari was brought to sale in satisfaction of the debt must be set aside, all the parties concerned must be brought before the Court, and their rights adjusted. That has not been done, and in the present state of things I think the plaintiff and not Chundermoney is the owner of the zamindari.
10. It is no doubt the fact that the plaintiff when he purchased had notice that Chundermoney was entitled to the zamindari rent, and it is necessary to consider how that affects him. He was in a very difficult position. If he had done nothing, and had allowed a third person to purchase, his patni title would, to say the least, have been in great jeopardy. It was necessary for him, therefore, either to purchase himself or to pay off the mortgage debt and so stop the sale. But this property being mortgaged together with other properties he must, in order to stop the sale, have paid off, not the debt upon this property alone, but the whole debt, which was probably far beyond his means. Practically, therefore, he was obliged either to allow his patni to be sacrificed, or to purchase; and I do not see why he should be in a worse position than any other purchaser. The proceedings by which the property was brought to sale were not under his control, and he seems to me to have acted bona fide for the protection of his own interest. It seems to me, therefore, that the plaintiff is entitled to a decree declaring that he is not liable to pay any rent to the defendant Chundermoney. If she can establish her right to the zamindari by any suit, properly framed for that purpose, she will be at liberty to do so. The decision of the lower Court will be reversed, and the plaintiff will get a decree declaring that he is not liable to pay rent to the defendant. I do not think the declaration ought to go further; nor will any direction be given as to the refund, which is probably a matter of small amount. The plaintiff will get his costs in this Court and the Court below.
Prinsep, J.
11. Understanding the opinion of the majority of the Full Bench in the judgment delivered by Sir R. Couch, Chief Justice, in the case of Syud Emam Momtazuddeen Mahomed v. Rajcoomar Doss (23 W.R., 187), to be, that when a mortgagee puts up mortgaged property to sale in execution of a decree “he sells the entire interest that he and the mortgagor could jointly sell,” and not merely the right and interest of the mortgagor as they stood at the time of the sale, and, feeling bound by that opinion, I agree in allowing the plaintiff’s claim in the present suit as against the third party Chundermoney, who bought the rights of the mortgagor subject to the mortgage.
