Judgement Appeal from a decree of the High Court (May 23, 1898) reversing a decree of the Subordinate Judge of Bhagulpore (April 20, 1896). The question decided in this appeal related to the rights of the deceased appellant Biseswar Lal and the respondent Dewan Bishen Pershad under certain mortgage bonds executed by the respondent Brij Pershad Singh, and to the terms on which redemption should take place or the mortgaged properties be made liable. Of these mortgages, so far as material, the first was on October 4, 1882, whereby Brij Pershad mortgaged the properties in suit to the respondent Bhagwan Das Marwari for Rs. 4600, with compound interest at 2 per cent. The second was on January 27, 1884, by Brij Pershad to Bhagwan Singh. The third was on September 5, 1886, by the same mortgagor, to Bhagwan Das Marwari, who subsequently sold his interest therein to Biseswar Das, the predecessor of the above-named appellant. Bhagwan Singh sued to enforce his mortgage of January 27, 1884. Therein he ignored the earlier mortgage of 1882 and the later of 1886. He obtained a decree for sale, and on December 6, 1890, the respondent Dewan Bishen Pershad became a purchaser. Then came the suit (No. 47 of 1890) on the mortgage of October 4, 1882, in which the assignee of Bhagwan Das Marwaris mortgage sued to enforce the same against the Dewan, purchaser of December 6, 1890, making defendants all parties appearing to be interested, whether as mortgagors or mortgagees. He obtained a decree on June 29, 1891, for the principal, with simple interest only. The respondent Dewan paid the amount, and also an additional sum of Rs. 8000 to compromise an appeal by the mortgagee in reference to the interest, which appeal was thereupon dismissed by consent. Biseswar Das Marwari, who was party defendant to the suit 47 of 1890, then sued on his mortgage of September 5, 1886. He ignored the mortgage to Bhagwan Das Marwari of October 4, 1882, but he referred to the suit by Bhagwan Singh, and to the circumstance that his own predecessor in title was not a party to that suit, and to the respondent Dewan Bishen Pershads purchase on December 6, 1890. He ignored the mortgage to Bhagwan Das Marwari of October 4, 1882, but he referred to the suit by Bhagwan Singh, and to the circumstance that his own predecessor in title was not a party to that suit, and to the respondent Dewan Bishen Pershads purchase on December 6, 1890. He claimed that the said respondent was only entitled to his " entire purchase-money, with interest at 8 annas per cent, per month,” and that this amount had been received out of the rents, and that, consequently, nothing was due to him. He prayed for mortgage accounts with compound interest, and for sale. The respondent Dewan Bishen Pershad in his written statement pleaded that the plaintiff had no cause of action under the circumstances. And he denied that the plaintiff had any right to redeem the property, and in any case that he could only redeem by payment of the entire amount of the mortgages of Bhagwan Das (of October 4, 1882) and Bhagwan Singh (of January 27, 1884), principal and interest " according to the terms of the said bonds." The Subordinate Judge held that the appellant was entitled to be paid the amount claimed for principal with compound interest, and that he was entitled to redeem (unless the respondent Dewan Bishen Pershad elected to redeem him) by paying to Dewan Bishen Pershad the sum appearing due upon an account to be taken on the basis of allowing that defendant credit for the sums he had paid, as already mentioned. And on April 20, 1896, after accounts had been taken, the Subordinate Judge made his final decree for payment to the plaintiff, and for sale of the properties in case of default. On appeal by the defendant Dewan Bishen Pershad the High Court decreed that the said defendant was " entitled to recover the amount of principal and interest according to the terms of that document" (the mortgage of October 4, 1882) " up to date. He will also receive the sum under Ex. B." (the sale certificate for his purchase of December 6, 1890), " namely, Rs. He will also receive the sum under Ex. B." (the sale certificate for his purchase of December 6, 1890), " namely, Rs. 2505, to which no objection is taken in this Court"; and, on the other hand, he was " to account for rents and profits in the ordinary way up to date." Sir W. Rattigan, K.C., and C. W. Arathoon, for the appellants, contended that the High Court was wrong in deciding that Bishen Pershad was entitled to recover the amount of principal and interest according to the terms of the bond of October 4, 1882. The amount due to him was only what he paid for his purchase, which had been allowed by consent, together with anything which he might have paid in respect of any prior mortgages. From this was to be deducted the amount he had received as net profits during possession. He was never a mortgagee or decree-holder, but an outside purchaser at a sale under a decree, and he was, therefore, only an incumbrancer to the extent of payments made. He did not by his purchase succeed to all the rights of the mortgagor under whose decree the sale took place. Reference was made to Transfer of Property Act, ss. 74, 75, 88, and 89; Fisher on Mortgages, 4th ed. p. 1009 ; 5th ed. p. 977 ; Auhindro Bhoosun Chatterjee v. Chunnoololl Johurry (( 1879) Ind. L. R. 5 Calc. 101.) ; Ganga Pershad Sahu v. Land Mortgage Bank. (( 1893) L. R. 21 Ind. Ap. 1.) In any view, the covenant to pay interest had become merged in the judgment see Ex parte Fewings (( 1883) 25 Ch. D. 338.), In re European Central Ry. Co. (( 1876) 4 Ch. D. 33.), and a judgment by Fry J. in Popple v. Sylvester. (( 1882) 22 Ch. D. 98.) Phillips and Bonnerjee, for the respondents, representatives of Dewan Bishen Pershad, contended that the High Court was right. Dewan Bishen Pershad by his purchase and subsequent payments became absolutely entitled to all the rights then possessed by the other parties in the suit No. 47 of 1890. All parties then entitled to redeem were before the Court as parties to that suit, and were excluded from redeeming except in that suit. Dewan Bishen Pershad by his purchase and subsequent payments became absolutely entitled to all the rights then possessed by the other parties in the suit No. 47 of 1890. All parties then entitled to redeem were before the Court as parties to that suit, and were excluded from redeeming except in that suit. The Dewan redeemed the other parties by his payments, and accordingly became entitled to the rights of all those parties, and thus became absolutely entitled to the property. In any event he is entitled to the full benefit of the mortgage of October 4, 1882, in place of the mortgagee thereof under whose decree he bought, and to the full amount which that mortgage purported to secure, including compound interest. As to what has to be paid under a mortgage, see Nilakant Banerji v. Suresh Chunder Mullick. (( 1885) L. R. 12 Ind. Ap. 171, 174.) The Subordinate Judge erroneously held that the case was to be governed by the doctrine laid down in Kasu Munnissa Bibee v. Nilratna Bose. (( 1881) Ind. L. R. 8 Calc. 79, 88.) Counsel for the appellants were not heard in reply. 1903. Dec. 2. The judgment of their Lordships was delivered by LORD MACNAGHTEN. This suit was brought by the late appellant Biseswar Lal Marwari to enforce a mortgage bond dated September 5, 1886, hypothecating, together with other property, 8 annas of a mouzah known as Burhanpore or Badhanpore. It seems that this share of Burhanpore was included in an earlier mortgage bond dated January 27, 1884. The owner of that incumbrance brought a suit to enforce his security and obtained a decree. The property was put up for sale on December 6, 1890. It was then bought for Rs. 2505 by the late respondent Dewan Bishen Pershad in the name of his relative Sumbhu Sahai. The incumbrancer from whom the appellants derive title was not a party to this suit or bound by the decree for sale. Another suit (No. 47 of 1890), brought in respect of the same property on a bond dated October 4, 1882, resulted in a decree dated June 29, 1891. The principal question in that suit was as to the rate of interest on the money secured by the bond. The bond purported to reserve interest at the rate of 2 per cent, per month, with annual rests and compound interest. The principal question in that suit was as to the rate of interest on the money secured by the bond. The bond purported to reserve interest at the rate of 2 per cent, per month, with annual rests and compound interest. But the learned judge held that rate exorbitant and improper under the circumstances, and allowed only simple interest at the rate of 1 per cent, per month or 12 per cent, per annum. Sumbhu Sahai, who represented the Dewan, was added as a party, and the decree was pronounced in his presence and also in the presence of the person from whom the appellants derive title, who being already a party to the suit was ordered to be " made a defendant as a subsequent mortgagee." Under this order, which was dated September 8, 1890, amendments seem to have been made, though they are not to be found in the record. The order for sale of the property appears to have been made absolute. But on the day of the auction the Dewan deposited the amount found due to the plaintiff, the decree-holder. It was accepted by him. The sale did not take place, and the order for sale dropped. There was at the time an appeal pending on behalf of the plaintiff, who was dissatisfied with the rate of interest allowed, and also a cross-appeal on behalf of the Dewan on some question of costs. Ultimately a com promise was made. The Dewan paid the plaintiff Rs. 8000 in addition to the amount found due to him. By an order of the High Court dated June 21, 1892, the plaintiffs appeal was by consent dismissed without costs, and so the order reducing the rate of interest on the bond of October 4, 1882, as against the mortgaged property and the subsequent mortgagees became absolute. In the present suit Biseswar Lal obtained a decree to enforce his mortgage security of September 5, 1886. The Dewan, who as purchaser at the sale of December 6, 1890, had succeeded to the rights of the mortgagor, and who also stood in the shoes of the decree-holder under the decree of June 29, 1891, declined to redeem, and accounts were directed to be taken in view of Biseswar Lal either redeeming the Dewan or in default of payment standing foreclosed. The accounts as passed by the Subordinate Judge allowed the Dewan the sum found due to the plaintiff in the suit No. 47 of 1890, with interest on the sum secured by the bond of October 4, 1882, at the reduced rate allowed by the decree of Juno 29, 1891, and also the sum of Rs. 8000 paid by the Dewan to the plaintiff in that suit on the occasion of the compromise which resulted in the order of the High Court dismissing the plaintiffs appeal. From the final decree in this suit of April 20, 1896, the Dewan appealed to the High Court. The judgment of the High Court was pronounced on May 23, 1898. The Court held that the Dewan was entitled to recover the sum of Rs. 2505 paid for the property at the sale of December 6, 1890, which was allowed by the Subordinate Judge, and to which no objection was taken in the High Court, and also the amount of principal and interest secured by the bond of October 4, 1882, " according to the terms of that document up to date/ while on the other hand he had u to account for rents and profits in the ordinary way up to that date." A slip in the accounts of rents and profits as passed by the Subordinate Judge was corrected. No order was made as to costs in the High Court. The effect of that order, as worked out with interest at 2 per cent, per month and annual rests, resulted in Biseswar Lal having to pay Rs. 1,21,546 13a. 1p. in order to recover 8 annas of Burhanpore. The appellants contend that the Dewan was not entitled to a higher rate of interest under the bond of October 4, 1882, than that allowed by the decree of June 29, 1891. Their Lordships think this contention is plainly right. The High Court gives no reason for disregarding the decree of June 29, 1891, and none was given at the bar. The predecessor in title of the appellants was a party to that decree as well as the Dewan, and the Dewan himself before the Subordinate Judge claimed to be allowed, and was allowed, as against Biseswar Lai and the mortgaged property, the sum of Rs. 8000, which he voluntarily paid as the consideration for having the decree reducing the rate of interest made absolute. 8000, which he voluntarily paid as the consideration for having the decree reducing the rate of interest made absolute. It was contended on behalf of the Dewans representatives (who alone defended this appeal) that Biseswar Lal ought to have enforced his right, if any, in the suit No. 47 of 1890, and that it was not competent for him to bring a fresh suit. Assuming that contention to be well founded, it seems to their Lordships much too late now to raise a point not insisted upon in either of the Courts below. It was also urged that the effect of the Dewan finding the money to pay off the plaintiff in the suit No. 47 of 1890 was to foreclose all subsequent mortgages, and make the Dewan absolute owner of the property. It is hardly necessary to say that their Lordships were unable to accept that view of the transaction. Their Lordships will humbly advise His Majesty that the decree of the High Court ought to be discharged, and that the Dewans representatives ought to pay the costs in that Court, and that the order of the Subordinate Judge ought to be restored subject to correction of the slip in that order pointed out by the High Court, the accounts brought up to date, and six months from the date of His Majestys Order in Council fixed for redemption of the property. The Dewans representatives will pay the costs of the appeal. Their Lordships observe that the record in this case was received in December, 1900, but that the case was not set down for hearing till September, 1903. They have accordingly directed the registrar to disallow to the appellants any costs which, in his view, may have been occasioned by delay on the part of the appellants in prosecuting the appeal.