JUDGMENT Sir Francis W. Maclean, K.C.I.E., C.J., 1. In my opinion we ought to answer the question submitted to us by saying that the Plaintiff is entitled to a sale of the property secured by his mortgage, subject to the rights of the first mortgagee and I propose to add very little to what I have already said when referring the case. 2. The second mortgagee was not a party to the suit instituted by the first mortgagee against the mortgagor and he was in no way bound by those proceedings : see the case of Umes Chunder Sircar v. Zahur Fatima ILR (1890) Cal. 164 : L.R. 17 IndAp 201. It would appear that the Judges of this Court who decided that case were of opinion that in such a case the puisne mortgagee was entitled to redeem or to have the property sold (see page 172) and the Privy Council supported that view (see page 179). If, as was laid down in Gobind Lal Roy v. Ramjanan Misser ILR (1893) Cal. 70 : L.R. 20 IndAp 165, a purchaser at a sale in execution of a decree obtained by a first mortgagee, in a suit to which the puisne incumbrancer was not a party, does not displace the latter but stands only in the position of the first mortgagee, there cannot be any doubt that the puisne incumbrancer could, as against the mortgagor, sell, subject to the first mortgage, I should have thought for my own part that, under such a sale, the interest of the first mortgagee and of the mortgagor passed to the purchaser, subject to the rights of the puisne incumbrancer. But taking this to be so, it would not assist the present Appellant. If there had been no suit by the first mortgagee, the puisne incumbrancer could have sued the mortgagor and subject to the mortgagor's right to redeem, have obtained a decree for the sale of the equity of redemption, that is, of the property subject to the first mortgage. See Kanti Ram v. Kutubuddin Mahomed ILR (1894) Cal. 33. This right cannot be taken away by any decree made in a suit to which he was not a party and by which he was not bound. 3. For these reasons I would answer the question as I have stated above. 4. See Kanti Ram v. Kutubuddin Mahomed ILR (1894) Cal. 33. This right cannot be taken away by any decree made in a suit to which he was not a party and by which he was not bound. 3. For these reasons I would answer the question as I have stated above. 4. The appeal is dismissed with costs, including the costs of this reference. Prinsep J. 5. In this case the first mortgagee, in execution of a decree obtained under the Transfer of Property Act, sold the mortgaged property and it was purchased by a third party. 6. The Plaintiffs who held a second mortgage were not made parties to that suit and they now claim to enforce their right as second mortgagees, subject to the previous mortgage. In the case of Times Chunder Sircar v. Zahur Fatima ILR (1890) Cal. 164 : L.R. 17 IndAp 201 their Lordships of the Privy Council have held that proceedings in a suit brought by a first mortgagee to which a puisne incumbrancer was no party are not binding on him so as to affect his right under the second mortgage. There can be do doubt, therefore, that the second mortgagee is entitled either to sell the mortgaged property, subject to the decree obtained by the first mortgagee, the terms of which are not disputed, or to redeem the first mortgage and then proceed against the entire mortgaged property. In this case the rights of the first mortgagee have passed to the auction-purchaser, who has also bought the equity of redemption so as to represent also the mortgagor, subject to any puisne incumbrance. The difficulty that I have felt in dealing with this case arises from the terms of Section 85 of the Transfer of Property Act, which required a first mortgagee to make parties to his suit all persons having any interest in the mortgaged property, such as a puisne incumbrancer, provided that he (the Plaintiff) has notice of such interest. I find it impossible satisfactorily to explain the meaning of this proviso, except to say that Section 85 declares that with notice of an interest in the property a suit cannot be brought without making a party having such interest, a party to the suit. But it leaves it open what the result is, if without notice, as in this case, a suit is brought without making such person a party. But it leaves it open what the result is, if without notice, as in this case, a suit is brought without making such person a party. 7. In this case both the mortgages were by registered instruments. It has not been found that the first mortgagee had notice of the second mortgage, so that the suit brought by him is not open to any objection as to its form in regard to Section 85. 8. Under rules made by this High Court for the preparation of a proclamation of sale in execution of a decree, careful enquiry has been directed to be made in the terms of Section 287 of the CPC to ascertain and state in that proclamation everything which the Court considers material for the purchaser to know in order to judge of the nature and value of the property. In a proclamation of sale in execution of a mortgage decree, it is most material that it should be known whether there is any incumbrance, prior or puisne to the mortgage, on account of which be the property is to be advertised for sale and enquiry should be directed to ascertain this. For the purposes of such enquiry it is declared that the "Court may summon any person whom it thinks necessary and examine him in respect of any such matters." In drawing attention to these provisions of the law, I desire to impress upon the Lower Courts that it is their duty, before proceeding to sell in execution of a mortgage decree, to endeavour to ascertain whether the mortgaged property is subject to any other incumbrance and for this purpose they should ordinarily examine both the mortgagee and the mortgagor. It is by such means only that the Court can make known to the purchaser what is material that he should know in order to judge of the nature and value of the property under sale. Without this information the purchaser may be induced to pay much more than the property is worth. He may be liable to a previous mortgage or mortgages unknown to him, or, as in the present case, there may be a puisne mortgage which must materially diminish the value of the right to redeem which he has been induced to purchase. Without this information the purchaser may be induced to pay much more than the property is worth. He may be liable to a previous mortgage or mortgages unknown to him, or, as in the present case, there may be a puisne mortgage which must materially diminish the value of the right to redeem which he has been induced to purchase. And unless it is known that some inquiry has been held, persons will not purchase at sale in execution of a mortgage decree, or if they do bid, they will not bid beyond the amount of the decree under execution. Even that, will involve considerable risk, for the decree under execution may be for a puisne mortgage and the property sold may thus be subject to prior mortgage. It is this uncertainty that prevents persons being concerned in mortgage transactions outside the Presidency towns. I should be glad to see some attempt made by the Legislature to make title, obtained by purchasers at such judicial sales and expressly at sales in execution of mortgage decrees, more certain, or, at all events, less liable to such risks. 9. I may mention that the High Courts of Bombay and Allahabad have held that registration of a mortgage deed amounts to notice of a mortgage. This High Court has refused so to interpret the law. I regard this as unfortunate, because it tends to complicate all mortgage transactions. The law requires the registration of all mortgages of immoveable property "of the value of one hundred rupees or upwards" (Indian Registration Act, III of 1877, Section 17) and it seems to me that by refusing to recognize registration of a mortgage as notice thereof, the full benefits of registration are lost. A purchaser at a judicial sale in execution of a mortgage decree is not protected as he should be. But however that may be, I desire to impress upon the Courts that it is their duty as much as possible to inform persons, desiring to purchase in execution of decrees passed by them, of what it is material that they should know, in order to judge of the nature and value of the property under sale, by taking such steps as I have indicated in the preparation of the sale proclamation. 10. 10. In answer to the question put to this Full Bench I would reply that, notwithstanding the sale under the previous mortgage in proceedings to which the Plaintiff as second mortgagee was no party, he has still the right to redeem that mortgage and he has also the right to sell the property, subject to the decree under the previous mortgage. He can thus sell the property outright, in which case the amount due under the decree on the first mortgage will be first satisfied out of the sale-proceed?, or he can, if so advised, sell only the right to redeem that mortgage, that is to say, the right still remaining in him. Sale J. 11. I agree that the reference should be answered in the manner proposed by the learned Chief Justice. If it be conceded, as it has been in this case, that the Plaintiffs' right to redeem remains unaffected, it follows in my opinion that the Plaintiffs must also have the right to have the mortgaged property sold, subject to the obligation or charge in respect of which the right to redeem exists. Stevens J. 12. I agree in the answer which the learned Chief Justice proposes to give to the question that has been referred to us. It seems to me that any other answer would involve the proposition that the second mortgagee may be prejudicially affected by proceedings to which he was not a party and by which, therefore, on general principles, he was not in any way bound. Geidt J. 12. I agree with my Lord the Chief Justice.