JUDGMENT : Banerji, J. The suit which has given rise to this appeal was brought under the following circumstances:— One Tilak Koeri made a mortgage in favour of Bishnath, the predecessor-in-title of the defendants-respondents, on the 9th June, 1893. On the 6th November, 1894 he mortgaged the same property to the plaintiff Kadir Buksh. Bishnath brought a suit upon his mortgage, but did not join Kadir Buksh as a party to it. He obtained a decree on the 25th June, 1895, and an order absolute for sale oh the 31st July, 1896. In execution of the decree so obtained the property was sold on the 20th September, 1897, and bought in by the respondents, Bishnath having in the meantime died. On the 2nd July, 1896, the plaintiff, Kadir Buksh, purchased the mortgaged property from the mortgagor, the consideration for the sale to him being the amount of the mortgage held by Kadir Buksh of the 6th November, 1894. Kadir Buksh brought the present suit for redemption of Bishnath's mortgage of 1893. The court of first instance decreed the claim, but the lower appellate court has dismissed it. 2. We are unable to accept the reasoning upon which the learned Judge has based his judgment. He holds that by the purchase of the 2nd July, 1896, the plaintiff lost all his rights as the second mortgagee of the property in suit, and that the said mortgage became totally extinct, that the plaintiff's right to the property is based upon his purchase under the deed of the 2nd July, 1896, that as the said purchase was made after the decree for sale in favour of Bishnath was passed, he was the representative of the judgment-debtor within the meaning of section 244 of the Code of Civil Procedure and was consequently bound to pay the amount of the mortgage before the mortgaged property was sold; that as he did not do so his right to pay off the mortgage no longer subsists and his suit must fail. In arriving at these conclusions, the learned Judge has in our opinion, fallen into two errors. In the first place the mere fact of the plaintiff having purchased the mortgaged property did not extinguish his rights under the mortgage held by him. In arriving at these conclusions, the learned Judge has in our opinion, fallen into two errors. In the first place the mere fact of the plaintiff having purchased the mortgaged property did not extinguish his rights under the mortgage held by him. Section IOI of the Transfer of Property Act provides that “where the owner of a charge or other encumbrance on immoveable property is or becomes absolutely entitled to that property, the charge or encumbrance shall be extinguished, unless he declares, by express words or necessary implication that it shall continue to subsist, or such continuance would be for his benefit?” There can be no doubt that it would be to the benefit of the plaintiff that the mortgage held by him should, subsist. 3. Therefore the mere fact of his having purchased, the mortgaged property, the consideration being the amount due on the mortgage, did not extinguish the mortgage. Consequently his right to redeem as the, subsequent mortgagee of the property still subsist. The next error into which the learned Judge has fallen is assuming that the plaintiff is the legal representative of the mortgagor, since he became such representative before the order absolute under section 89 was obtained, and he was not made a party to the proceedings under section 89 his right to redeem the mortgage has not been extinguished. The plaintiff having stepped into the shoes of the mortgagor and acquired all the rights which the mortgagor had at the time of the sale to him, it was the duty of the first mortgagee to make him a party to the proceedings under section 89 and to obtain an order absolute as against him,. Such order not having been obtained, the plaintiffs right to redeem still subsists. The defendants by virtue of their auction purchase in execution of a decree passed in a suit to which the plaintiff was a necessary party and was not made a party have acquired no higher rights than the first mortgagee, and as the plaintiff is still entitled to redeem that mortgagee, he is entitled to redeem the defendants. The court below is, in our judgment, in error in dismissing the plaintiff's suit. The court below is, in our judgment, in error in dismissing the plaintiff's suit. As there were no other questions to be determined by the lower appellate court, the result is that we allow this appeal with costs and, setting aside the decree of the lower appellate court with costs, we restore the decree of the court of first instance with this modification that we fix the 20th May as the date on or, before which the mortgage money should be paid.