JUDGMENT
Nasim Ali, J.
1. This is an appeal by the plaintiff in a suit for possession on declaration of the plaintiff’s title. Plaintiff’s case briefly stated is as follows : The land described in Schedule 1 to the plaint belonged to the predecessors of defendants 5 and 6. The land described in Schedule 2 is a part of the land described in Schedule 1. The entire land of Schedule 1 was mortgaged to the predecessors of the plaintiff by a registered’ simple mortgage bond oh 14th January 1917 to secure a loan of Rs. 20,00. Plaintiff’s predecessor instituted a suit on the basis of this mortgage against the mortgagors and obtained a decree, and in execution of the said decree they purchased the mortgaged lands on 26th August 1930. They obtained possession on 17th November 1931. Thereafter, the plaintiff continued to be in possession till September 1935. In-that month the defendants erected a building forcibly on the land mentioned in Schedule 2; of the plaint. There was a criminal case. Plaintiff was unsuccessful in that case. On 20th December 1935, plaintiff raised the-present suit for declaration of her title and for possession. Only defendants 2 and 4 contested the suit. Their defence in substance is this : The land of Schedule 2 is not included in the mortgage which was executed in favour of the predecessors of the plaintiff. Plaintiff never possessed this land. Defendants 5 and 6 gave a permanent lease of this land to one Surjya Kanta Chatterjee by a registered lease, dated 15th March 1920. Surjya entered into possession on the basis of this lease and afterwards sold the-land to the father of defendants 1 to 4 by a registered kobala, dated 23rd December 1935. Defendants 5 and 6 thereafter confirmed the said lease by a registered document on 6th February 1936. The plaintiff did not make defendants 1 to 4 parties to the mortgage suit. They are not. therefore bound by the mortgage decree or sale. The Munsif who tried the suit found’ that the land of Schedule .2 was included in the-mortgage executed by defendants 5 and 6-in favour of the plaintiff’s predecessor. He also held that the question of limitation did not at all arise in the case. He accordingly decreed the plaintiff’s suit but gave defendants 1 to 4 an opportunity to redeem the mortgage on payment of the entire-amount decreed in favour of the plaintiff’s predecessor in the mortgage suit. Defendants 2 and 4 appealed to the District, Judge but their appeal was dismissed by the Additional District Judge and the decree’ of the Munsif was affirmed. A second appeal was taken to this Court by defendants 2 and 4. This appeal was heard by my learned brother Mukherjea J. Mukherjea J. held that defendants 1 to 4 were entitled to retain possession of the lands of Schedule 2 on payment of a proportionate share of the decretal amount with interest. He accordingly made an order remanding the case to the lower Appellate Court for ascertaining the amount which is to be paid by defendants 1 to 4 in pursuance of his order. Hence this appeal by the plaintiff under Clause 15, Letters Patent.
2. Two points were urged in support of this appeal on behalf of the plaintiff : (1) That the defendants 1 to 4 were bound by the mortgage decree and the sale held thereunder and consequently they are not entitled to retain possession by redeeming the mortgage; (2) That even if they are entitled to redeem, they are bound to redeem the mortgage in its entirety. A simple mortgage is a contract creating a personal obligation to repay the loan. It also operates as a conveyance of an interest in the property mortgaged. It is “a right in rem realizable by sale given to a creditor by way of accessory security to a right in personam”: Holland’s Jurisprudence, Edn. 8, page 202. Interest which passes to the mortgagee is not the ownership of the property which, notwithstanding the mortgage, remains in the mortgagor together with the right of redemption. The mortgagor parts only with the right of sale and nothing more. Until the property is actually sold and the sale becomes absolute, ownership of the property continues in the mortgagor. An action to enforce a mortgage is not properly constituted unless every person who has an interest either in the security or in the right of redemption is joined as a party (O. 34, Rule 1, Civil P. C). If the ownership of the equity of redemption is completely represented in the mortgage suit, the purchaser at the mortgage sale acquires the entire equity of redemption together with the lien of the mortgagee which he may use, if necessary, for his protection. If however the equity of redemption is wholly unrepresented in the action, the purchaser at the mortgage-sale acquires nothing. He does not get the equity of redemption which includes the right to possess the mortgaged premises. The lien of the mortgagee also is not transferred to him. A mortgagee sells the property to satisfy his debt. He must be taken therefore to sell the mortgaged property discharged of his own lien. But if in fact he sells nothing and the sale is liable to be set aside, because the mortgagor had no property to sell, the mortgagee’s lien cannot pass to the purchaser. In spite of the sale, it remains in the mortgagee. But where however, as in the present case, the mortgagee sells something, the sale, though it fails to be effectual in every other respect, operates as an assignment of the mortgage to the purchaser and he can use it for his own protection. Plaintiff in the present case cannot fall back on the mortgage as admittedly the right to enforce the mortgage was barred by limitation before the institution of the present suit. She cannot therefore now compel defendants 1 to 4 to redeem her. On the extinction of her right to enforce the mortgage lien against the property in the possession of defendants 1 to 4, it is not open to her to ask the Court to convert the defendants’ right to redeem, which they are not bound to exercise, into a liability which they may be compelled to discharge. The plaintiff cannot eject defendants 1 to 4 from the disputed land, as they were not parties to the mortgage suit and the mortgage-sale did not extinguish their right in the property, namely the right to remain in possession as a permanent tenant.
3. As defendants 1 to 4 have accepted the decree passed by Mukherjea J., and as it appears that in the Courts below they offered to redeem the mortgage on payment of a proportionate share of the mortgage decree, the decree passed by Mukherjea J. cannot be interfered with in this appeal. I accordingly dismiss this appeal. There will be however no order for costs in this appeal.
S.K. Ghose, J.
4. I agree.
