Judgement Appeal from a decree of the High Court (July 9, 1897) reversing a decree of the Subordinate Judge of Meerut (April 16, 1895). The plaintiffs filed their plaint, under the circumstances stated in their Lordships judgment, to recover from the defendant Phul Chand the sum of Rs.9942, which had been paid to him under an order of Court dated February 7, 1888. The ground of the order was that the sum in question represented the sale proceeds of three villages, which had been mortgaged to the respondent by a deed dated June 30, 1883, on which a decree in his favour dated March 6, 1884, had been passed. By their suit the plaintiffs claimed that this mortgage in favour of the respondent was subject to a prior charge created in their favour on May 4, 1883. The respondent pleaded that the plaintiffs had no right to have the money refunded. It was barred by art. 13 of Act XV. of 1877 and by s. 43 of the Civil Procedure Code. On the merits he contended that the mortgage of May 4 was superseded by another mortgage to the plaintiffs on November 3, 1883, which was in every respect a different one from the deed of May, 1883. On July 29, 1891, the Subordinate Judge dismissed the suit, holding that it was " time barred under art. 13, sched. 2, of the Limitation Act." He cited Gowri Prosad Kundu v. Ram Ratan Sircar and Others. (( 1886) Ind. L. R. 13 Calc. 159.) The High Court reversed this decree and remanded the case; and thereupon the Subordinate Judge decreed the suit on the ground that the bond of May 4 was " renovated on November 3, 1883," and was thereby expressly kept subsisting. In appeal the High Court dismissed the suit with the following judgment— " The present suit is for the recovery of the assets which were paid over to Phul Chand on the ground that, although the decree of the plaintiffs was based on a bond subsequent in point of time to that upon which the defendants decree was based, the incumbrance of the subsequent bond was in reality an incumbrance created by a bond of May, 1883, and therefore prior, in point of time, to the incumbrance in favour of the defendant and the decree which followed from that incumbrance. There can be no doubt whatever, indeed, it is admitted, that the Court which executed the decrees and paid over the assets to Phul Chand had no jurisdiction to act otherwise than it did; but we go further. "We have not in the case before us any evidence which established the alleged connection between the bond of November, 1883, and the bond of May, 1883. We were asked to hold that two of the villages, Aminabad and Chawki, had been sold in execution of the decree held by the plaintiffs. This we cannot do, and for this reason, that Phul Chand under the decree which he held was entitled to bring to sale and have sold each and every scrap of the property hypothecated in his bond until enough had been realized to satisfy the whole claim covered by his decree. No Court could direct that some of that property should only be sold in that decree, and that the rest or any portion of it should be sold in satisfaction of any other decree. For these reasons we allow this appeal, set aside the decree of the Court below, and dismiss the plaintiffs suit with costs in all Courts." Mayne, for the appellants, contended that this dismissal should be reversed. He denied that any admission had been made on the appellants behalf that the Court which executed the decree had no jurisdiction to act otherwise than it did. The whole suit asserted the contrary, and was based on the contention that under s. 295 of the Civil Procedure Code the Court was bound to distribute the proceeds of the sale according to the priority of the claims upon the property sold, and that if it did not do so its omission or erroneous decision could be corrected in a suit brought for that purpose. Clause (b) of that section provides that when any property liable to be sold in execution of a decree is subject to a mortgage or charge, the Court may, with the assent of the mortgagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same right against the proceeds of the sale as he had against the property sold. See also s. 96 of the Land Transfer Act (IV. of 1882). See also s. 96 of the Land Transfer Act (IV. of 1882). The appellants had a decree dated February 18, 1884, on a bond dated November 3, 1883, which renewed a bond of May, 1883. The Court in execution ordered that as regards Chachora, one of the villages sold, the respondents decree dated March 6, 1884, on a bond dated June 30, 1882, took precedence of the appellants; and it made a similar order as to the twelve biswas of the other two villages. It was contended that this was clearly wrong, and that the respondent had not shewn that the bond of May, 1883, had lost priority because of its renewal in November, 1883. Ross, for the respondents, contended that the suit was barred by limitation. The suit was competent under s. 295 of the Code, but, being virtually and substantially a suit to set aside an order of Court in a proceeding other than a suit, it should have been brought within one year from the date of the final order made by the Court in execution of the decrees in question. See art. 13 of Act XV. of 1877, sched. 2; Gowri Prosad Kundu v. Ram Ratan Sircar (Ind. L. R. 13 Calc. 159.), and the two cases cited therein from 16 S. W. E. 11 and 23 S. W. E. 434; Dwarkanath Biswas v. Roy Dhunput Singh. (( 1872) 17 Suth. W. R. 227.) The High Court preferred to follow its own ruling in Ram Kishan v. Bhawani Das. (( 1876) Ind. L. R. 1 Allah. 333.) That case, however, was distinguishable. The order for execution made in that case was without jurisdiction, a nullity, which could offer no impediment to bringing a regular suit. Upon the merits the defendant was entitled to a dismissal of the suit. The bond of November, 1883, was distinct from that of May, 1883, and was an original and not a renewal bond, and was so intended by the parties. The decree was founded on the later bond and did not notice the earlier one. The High Court was right in saying that no evidence had been called to connect the two bonds in any way. The documents when examined shewed that the intention was to relinquish the earlier bond and to rely on the later one, and so the priority over the respondent had been lost. The High Court was right in saying that no evidence had been called to connect the two bonds in any way. The documents when examined shewed that the intention was to relinquish the earlier bond and to rely on the later one, and so the priority over the respondent had been lost. Reference was made to s. 79 of the Transfer of Property Act, and it was contended that in suing for a decree on the bond of November, 1883, the appellants should have prayed that the incumbrance created by the bond of May, 1883, might be kept alive, and that by omitting to do so, and to mate Phul Chand a party in respect of such prayer, they had lost the priority which depended upon its being kept alive, and were confined to the bond which alone had been enforced by decree. Mayne replied, citing Vishnu Bhikaji Phadke v. Achut Jagannath Ghate (Ind. L. R. 15 Bomb. 438.) and Taponidi v. Mathura Lall Bhagat. (( 1885) Ind. L. R. 12 Calc. 499.) The judgment of their Lordships was delivered by LORD ROBERTSON. The competition between the appellants and the present respondents, who are the legal representatives of the original respondent Lala Phul Chand, deceased, is for moneys realized by the judicial sale of certain villages, and paid over under judicial warrant to Lala Phul Chand. The villager were ordered to be sold in execution of certain decrees, of which one was held by Lala Phul Chand and two by the appellants. Those decrees proceeded upon mortgages, and the question on the merits of the suit is which of the parties had the preferable security. The three bonds giving rise to the dispute were all validly granted and will now be stated in chronological order, without reference to any distinctive particulars irrelevant to the present controversy. On May 4, 1883, the villages (to the extent of certain shares also dealt with in the other two bonds) were hypothecated in favour of the appellants for Rs. 15,500. On June 30, 1883, a bond of hypothecation of the same property was executed in favour of Lala Phul Chand for Rs.7000. On November 3, 1883, a bond of hypothecation of the same property was executed in favour of persons now represented in interest by the appellants for Rs.20,000. The terms of this bond require further statement. 15,500. On June 30, 1883, a bond of hypothecation of the same property was executed in favour of Lala Phul Chand for Rs.7000. On November 3, 1883, a bond of hypothecation of the same property was executed in favour of persons now represented in interest by the appellants for Rs.20,000. The terms of this bond require further statement. It begins by declaring that Rs.15,500 are due on account of the bond of May 4, 1883, in which the mortgagors right was hypothecated. Then it sets out that interest is due and that other debts have been incurred, bringing out a total indebtedness of Rs.20,000; and until repayment of all this money the borrower hypothecates what had been hypothecated in the bond for Rs.15,500. In addition to the above, he hypothecated certain other shares in the same villages. The interest under this new bond was to be 14 annas per cent, per mensem (the interest under the bond of May having been 12 annas). In 1885 the appellants obtained decrees for the amount of the debt under the bond of November, 1883, and for enforcement of the hypothecation by sale. (Two decrees were taken, and not one only, merely because the amount of the bond was payable in moieties, but the appellants having come to be in right of both moieties this introduces none but an apparent complication.) As the respondents contention on the merits depends mainly on these proceedings, it is necessary to point out that in their plaints the appellants sued on the bond of November, 1883, alone, and not on the bond of May, 1883; and this was the tenor of the decrees obtained on those plaints, and also of the orders for execution which followed in due course. Meantime Lala Phul Chand had sued on his bond; and the claims of both parties, as well as those of other creditors, having matured, an order was made for sale and the sale took place. The sequel of those judicial proceedings was the distribution of the price; and in carrying this out, as well as what had preceded, the Subordinate Judge of Meerut was acting under the Civil Procedure Code, 1877, and particularly s. 295. The sequel of those judicial proceedings was the distribution of the price; and in carrying this out, as well as what had preceded, the Subordinate Judge of Meerut was acting under the Civil Procedure Code, 1877, and particularly s. 295. On February 7, 1888, an order was made for distribution of the price, and in it the judge held that Lala Phul Chand was entitled to be paid in preference to the appellants, on the ground that in their decrees the appellants rights were rested solely on the bond of November, 1883, and not to any extent on the bond of May, 1883, and accordingly that their rights were inferior to that of Lala Phul Chand under his bond of June, 1883. The money was accordingly paid over to Lala Phul Chand. The appellants thereafter, on February 4, 1891, filed the present petition of plaint, the remedy sought being that Lala Phul Chand should be ordered to return to the appellants the proceeds of the sale on the ground of the priority of the hypothecation in their favour made in May, 1883. The answer of the respondents is, first, that the suit is time barred under art. 13 of the Limitation Act, the suit not having been brought within one year of the order for distribution made by the Subordinate Judge on February 7, 1888; and, second/that the appellants had lost their right to found on the bond of May, 1883, as conferring on them a priority over Lala Phul Chands bond of June, 1883. The Subordinate Judge of Meerut held the suit to be barred, and by decree sealed on August 3, 1891, he dismissed it. On June 27, 1893, this decree was set aside by the High Court of the North-West Provinces, and the case was remanded. The Subordinate Judge on April 16, 1895, gave to the appellants the decree sought for; but this decree was on July 9, 1897, set aside by the High Court, who dismissed the suit with costs in all Courts. Against this decision the present appeal has been brought. The theory of the respondents plea that the suit is time barred is that it is truly a suit to set aside the order of February 7, 1888, by which the Subordinate Judge ordered payment to Lala Phul Chand of the proceeds of the sale. Against this decision the present appeal has been brought. The theory of the respondents plea that the suit is time barred is that it is truly a suit to set aside the order of February 7, 1888, by which the Subordinate Judge ordered payment to Lala Phul Chand of the proceeds of the sale. That the money now sued for is the money so authorized to be paid over is certain. But it is to be observed that the same section of the Civil Procedure Code which authorized the order for payment to Lala Phul Chand authorizes also the present suit by the appellants. The 295th section, while providing that the judge under whose authority the sale takes place shall distribute the proceeds, provides also that if all or any of such assets be paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets. It seems to their Lordships, therefore, that the present suit is in no sense an action to set aside the order of distribution of February 7, 1888, and that that order does not stand in the way of the present suit. The scheme of s. 295 is rather to enable the judge as matter of administration to distribute the price according to what seem at the time to be the rights of parties, without this distribution importing a conclusive adjudication on those rights, which may be subsequently readjusted by a suit such as the present. Their Lordships approve of the decision on this point in Vishnu Bhikaji Phadke v. Achut Jagannath Ghate (Ind. L. R. 15 Bomb. 438.), and they concur in the further observation made by the learned judge in that case that the application of the 13th article is also precluded by the fact that the order for distribution was a step in an execution proceeding, and was, therefore, made in the suit in which the decree was made which was in process of execution. The order for distribution was thus an order in a suit. On the merits, their Lordships hold that the appellants are entitled to prevail. If the bond of November, 1883, be considered on its own terms, there is no room for the suggestion that it superseded the bond of May so as to impair the effect of that bond as a subsisting hypothecation. On the merits, their Lordships hold that the appellants are entitled to prevail. If the bond of November, 1883, be considered on its own terms, there is no room for the suggestion that it superseded the bond of May so as to impair the effect of that bond as a subsisting hypothecation. The argument of the respondents was rather that the appellants, by their suing on the bond of November and not on the bond of May, had relinquished their rights under the bond of May. No such inference can legitimately be drawn. The appellants did not need to sue on the bond of May in order to obtain a sale for the whole of their debt, that being comprised in the bond of November. But in suing on the bond of November they did nothing to imply or to lead others to believe that they abandoned what apart from abandonment was a subsisting hypothecation ; and in point of fact Lala Phul Chand in the suit on his own bond expressly recognised the bond of May as a subsisting and prior hypothecation. Their Lordships will humbly advise His Majesty that the decree of the High Court ought to be reversed, and the appeal to it ordered to be dismissed with costs, and the decree of the Subordinate Judge of April 16, 1895, be restored. The respondents will pay the costs of the appeal.