Judgement Appeal from a decree of the High Court (Dec. 10, 1901), which dismissed the plaintiffs suit, reversing a decree of the Subordinate Judge of Mainpuri (June 23, 1898), which had granted foreclosure as prayed. The suit was brought by Gaya Prasad on February 3, 1898, on a mortgage of village Patara dated July 20, 1889, by one Fateh Chand, the then owner, in favour of the respondent and one Kunjbihari Lal, the second defendant, for Rs. 7101. The plaint alleged a second mortgage of the same property, dated October 22, 1889, in favour of the respondent and Anant Ram in equal moieties, and that the plaintiff succeeded to Anant Barns moiety by purchase on October 1,1.891. It also narrated a foreclosure decree obtained on December 22, 1894, in suit No. 123 of 1893, by the respondent and Kunjbihari on the first mortgage deed, conditional upon the non-payment of principal and interest on a fixed date, and that the plaintiff, a party defendant thereto, had on January 3, 1896, deposited in court the amount due on the said mortgage, which amount had been subsequently paid out in equal shares to the two first mortgagees. This decree followed the form prescribed by s. 86 of the Transfer of Property Act, 1882, which did not provide for successive rights of redemption or for the adjustment of the rights of the parties interested when there were more than mortgagor and mortgagee. This decree followed the form prescribed by s. 86 of the Transfer of Property Act, 1882, which did not provide for successive rights of redemption or for the adjustment of the rights of the parties interested when there were more than mortgagor and mortgagee. The further proceedings thereunder consequent upon the first mortgage being paid off by one of the second mortgagees were as follows On the said January 3, 1896, Gaya Prasad prayed that under s. 74 of the Transfer of Property Act " all the rights which the decree-holders, viz., Bansidhar and Kunjbihari Lal, have under a deed dated July 20, 1889, and in respect of which decree in No. 123 of 1893 was passed on December 22, 1894, may be transferred in favour of the petitioner and the amount due under the decree may be paid to the decree-holders." On December 11 in the same year the plaintiff herein, i.e. Gaya Prasad, applied that the said decree-holders " be directed to deliver up to Gaya Prasad, defendant, the subsequent mortgagee, all documents in their possession or power relating to the mortgaged property, and deliver possession of the mortgaged property to Gaya Prasad." On June 26, 1897, the Subordinate Judge ordered "As Gaya Prasad, defendant, the subsequent mortgagee, paid the amount due under the decree passed on the basis of a mortgage to the plaintiffs, he became the representative of the plaintiffs mort-gagees. The defendant petitioner can get no relief in the miscellaneous department." On August 3, 1897, Gaya Prasad prayed also in the said suit, No. 123 of 1893, for a decree for absolute foreclosure in respect of the mortgaged property as " the representative of the plaintiffs mortgagees." On the same day the application was disallowed with costs, the judge remarking in his judgment " It is urged by Bansidhar that in this case a decree for absolute foreclosure cannot be prepared in favour of Gaya Prasad, defendant." He ruled that the decree remained no longer capable of execution, and that Gaya Prasad is entitled to bring a suit for foreclosure, but " he has not acquired the status of a decree-holder and cannot get a decree for absolute foreclosure prepared in his favour." Such a decree, he held, would be contrary to the order in the decree already passed. Gaya Prasad thereupon brought the suit in which this appeal arose, alleging that his cause of action accrued on January 3, 1896, the date of his deposit in court of the amount of the first mortgage money; that he " acquired under s. 74 (Act IV. of 1882) all the rights and interests possessed by the prior mortgagees, decree-holders" ; and that in a suit No. 122 of 1893 a decree nisi of foreclosure had been also obtained on the said December 22, 1894, that is, of even date with the decree in No. 123 of 1893, by the second mortgagees whereby the equities to redeem subsequent to that of the second mortgagees were conditionally extinguished. He nevertheless made the representatives of the mortgagor and the third mortgagee parties to the suit, and, without referring to the respondents equity to redeem a moiety of the estate under his second mortgage, prayed—(1.) for an absolute decree of foreclosure; (2.) that under certain circumstances the mortgagor and the third mortgagee should be allowed to redeem and a foreclosure conditioned on their default be granted;-(3.) that the respondent be directed to pay a moiety of the sum deposited in court on January 3, 1896, with interest and costs. The mortgagor and third mortgagee did not appear. The respondent contended in his written statement that the suit was barred by s. 244 of the Civil Procedure Code—in other words, that the plaintiff who had redeemed the first mortgage under s. 75 of the Transfer of Property Act could obtain all the relief to which he was entitled in the suit No. 123 of 1893 brought on the first mortgage, which suit had not yet been finally disposed of. Issues were settled on March 30, 1898, and on June 22 the plaintiffs pleader brought to the notice of the Court that a decree absolute for foreclosure on the basis of the second mortgage, the decree nisi on which had, as stated in the plaint, been passed on December 22, 1894, in suit No. 122 of 1893, had been obtained on May 7, 1898, under s. 87 of the Transfer of Property Act at the instance of the respondent alone, and that under the decree the appellant became the absolute owner of half of the whole mortgaged property. The Subordinate Judge in his judgment said " The plaintiff has made three prayers in his plaint—(1.) for obtaining a decree absolute without a condition of redemption of mortgage; (2.) in the event of the first prayer not being granted, for a decree under s. 86 of the Transfer of Property Act, fixing specified period, and in the event of non-compliance therewith for a decree absolute; (3.) in case the aforesaid two prayers may not be granted, then for a decree for Rs. 7546 8a. to be passed against the person and property of Babu Bansidhar, defendant No. 1." “ The reason why the Court hesitates to grant the first prayer is that on such a decree being given the subsequent incumbrancers would not have opportunity of paying the prior debt, the difficulties which had formerly arisen and which necessitated this suit. It is further contended by the answering defendants learned pleaders that the defendant obtained a decree absolute in the month of May, 1898, subsequently to the institution of this suit, and that therefore two decrees absolute cannot be given. But this contention carries no weight, inasmuch as that decree does not affect this plaintiff when he has already paid the prior debt. The second prayer is allowable. In this case the subsequent mortgagees, Babu Prag Narain and others, shall again have opportunity to redeem, because in the presence of plaintiff they cannot pay the amount of the decree under s. 86 of the Transfer of Pro- perty Act obtained by the answering defendant and Kunj Bihari Lal. Now, if they like, they can make the payment. The Court can get no other opportunity other than this to pass a just decre; otherwise the plaintiff who has bon& fide paid a large amount of prior debt will be deprived of his right.” The High Court reversed the decree of the lower Court, and dismissed the suit as barred by s. 244 " It seems to us clear that Gaya Prasad, who as second mortgagee was a party to the suit when he paid off the claim of the plaintiffs, acquired under s. 74 of the Transfer of Property Act all the rights and powers of the first mortgagees, the decree-holders in respect of the mortgaged property, and in effect stepped into the shoes of the plaintiffs, so far as regarded the enforcement of their rights. He practically became the decree-holder in place of the original decree-holders. The suit was not thereby terminated, nor did the plaintiffs cease to be parties to it, although they ceased no doubt to have any interest in its further prosecution. It still remained for the Court to adjust the rights and liabilities of all the parties to the suit in respect of the mortgaged property and in respect of costs, and if necessary for that purpose to make and enforce an absolute order for foreclosure. The right, which belonged to the plaintiffs, to have the primary decree effectually worked out by execution passed to Gay a Prasad by virtue of s. 74 of the Act above referred to, he having satisfied the claim of the plaintiffs. With the change of interest so caused the suit continued to be a subsisting suit." Ross, for the appellant, contended that the suit was not barred by s. 244 of the Civil Procedure Code. The decree dated December 22, 1894, in suit No. 123 of 1893 was no longer capable of execution after Gaya Prasad had paid the money into court, and after its acceptance by the plaintiffs. By that payment and acceptance the decree was discharged and satisfied. Moreover, by its true construction the plaintiff could not have obtained in the execution department the relief prayed for by him. That decree was so drawn as to be applicable only as between the first mortgagee and mortgagor, following the form prescribed in s. 86 of the Transfer of Property Act, and did not provide for the case which has arisen of a second mortgagee having paid off the first mortgage, or for the enforcement of the second mortgagees rights in any event. As transferee of the first mortgage he had rights not cognizable in that suit, for they were not affected by the decree which had been passed, and therefore could not be worked out in execution thereof. The decree ought to have provided for successive redemptions. [Lord Davey. Could he not have gone on with his own suit, No. 122 ?] In that suit he was co-plaintiff with the present defendant, it did not relate to the first mortgage, and the first mortgagees were not parties. Reference was made to the Transfer of Property Act, 1882, ss. 74 and 86 Mallikarjunadu Setti v. Lingamurti Pantulu (( 1902) Ind. Could he not have gone on with his own suit, No. 122 ?] In that suit he was co-plaintiff with the present defendant, it did not relate to the first mortgage, and the first mortgagees were not parties. Reference was made to the Transfer of Property Act, 1882, ss. 74 and 86 Mallikarjunadu Setti v. Lingamurti Pantulu (( 1902) Ind. L. R. 25 Madr.244, 258.); Ram Kirpal v. Rup Kuari (( 1883) L. R. 11 Ind. Ap. 37 40,); Mungul Pershad Dichit v. Grija Kant Lahiri Chowdhry. (( 1881) L. R. 8 Ind. Ap. 123.) Cowell, for the respondent, contended that the suit was barred by s. 244, for in the events which had happened all the equities of all parties had been disposed of except the sole remaining one which was the subject of, this suit, which could easily have been disposed of in either of the two former suits. The first mortgagee had been paid off; all equities subsequent to those of the second mortgagees had been foreclosed. The result was that the plaintiff in this suit was absolutely entitled to one moiety of the property and was owner of the other moiety subject to a mortgage, which the defendant could have been ordered to redeem or be foreclosed in either of the former suits. In No. 123 further directions adapted to the events which had happened could have been given, but had not even been applied for. It could not be expected that an elaborate decree as suggested in Seton on Decrees should be given by a Mofussil Court in the first instance dealing with every contingency which might arise. Sect. 85 of the Transfer of Property Act on its true construction rendered it obligatory on the Courts to adjust all the equities of and in the mortgaged property the subject of suit, and the Courts had so construed the section see Ghulam Kadir Khan v. Mustakim Khan. (( 1895) Ind. L. R. 18 Allah. 109.) The plaintiff was bound at his own peril, like every other party to those suits, to see that his rights were provided for. (( 1895) Ind. L. R. 18 Allah. 109.) The plaintiff was bound at his own peril, like every other party to those suits, to see that his rights were provided for. If the sole remaining equity relating to the mortgage in question could not have been ascertained or enforced in suit No. 123, there was still the suit No. 122, and under s. 244 any question arising between the parties, whether co-plaintiffs or co-defend ants, could on the true construction of that section have been decided. A third suit under the circumstances was vexatious and ought not to be allowed, at all events not until the plaintiff had asked for in one or other of the former suits and been refused the relief which he was entitled to. The only claims which he had put forward in the suit No. 123 were unfounded. Ross replied. The judgment of their Lordships was delivered by LORD DAVEY. This is an appeal from a decree of the High Court at Allahabad, dated December 10, 1901, by which the previous decree of the Subordinate Judge of Mainpuri was reversed. The appellants are the representatives of the original plaintiff, Gaya Prasad, who died during the pendency of the suit. The case involves the consideration of some complicated mortgage transactions. On July 20, 1889, Chaudhri Fateh Chand executed a mortgage by conditional sale in favour of the respondent Bansidhar and Kunj Bihari Lal for Rs. 7101. The mortgaged property consisted of two villages, Patara and Bhatpura. On October 22, 1889, the same mortgagor executed a second mortgage by conditional sale in favour of Anant Ram and the respondent for Rs. 10,000 and interest. This mortgage comprised Patara and eight other villages, not including Bhatpura. On October 1, 1891, Anant Ram sold his moiety of this mortgage to Gaya Prasad. The situation, therefore, as regards Patara was that the respondent and Kunj Bihari Lal were first mortgagees and the respondent and Gaya Prasad were second mortgagees. On September 17, 1893, a suit (No. 123 of 1893) was commenced in the Court of the Subordinate Judge of Mainpuri for foreclosure of the first mortgage. The situation, therefore, as regards Patara was that the respondent and Kunj Bihari Lal were first mortgagees and the respondent and Gaya Prasad were second mortgagees. On September 17, 1893, a suit (No. 123 of 1893) was commenced in the Court of the Subordinate Judge of Mainpuri for foreclosure of the first mortgage. As ultimately constituted this suit was by the respondent and Kunj Bihari Lal, the first mortgagees on Patara, against Chaudhri Raj Kunwar, son and heir of Chaudhri Fateh Chand (then deceased), Gaya Prasad, and one Munshi Nawal Kishore, who appears to have held a third mortgage on the same property. Bhatpura had been disposed of under a prior hypothecation, and was excluded from the suit by order. On September 27, 1893, another suit (No. 122 of 1893) was commenced in the same Court for foreclosure of the second mortgage. This suit, as finally constituted, was one by the respondent and Gaya Prasad against Chaudhri Raj Kunwar and Munshi Nawal Kishore. On December 22, 1894, decrees were made in both these suits. By the decree in the first suit it was ordered that on the defendant (sic) paying to the plaintiff (sic) or into court on April 22, 1895, the sum of Rs. 14,211 7a, 9p, with future interest at the rate of 8 annas per cent, per mensem, the plaintiff should deliver up to the defendant all documents in his possession relating to the mortgaged property, and should transfer the property to the defendant free from incumbrances created by the plaintiff, but if such payment were not made on April 22, 1895, it was ordered that the defendant should be absolutely debarred of all right to redeem the mortgaged pro perty. The decree in the second suit was in the same form mutatis mutandis. Their Lordships will here observe that the decree in the first suit does not seem to be adapted to a suit by a first mortgagee against subsequent incumbrancers and mortgagor. It appears to be a transcript of the form of order given in s. 86 of the Transfer of Property Act, 1882. That form contemplates a suit between one mortgagee and the mortgagor only, and should be treated as a common form not to be literally followed in every suit for foreclosure, but to be adapted to the particular circumstances of each case. That form contemplates a suit between one mortgagee and the mortgagor only, and should be treated as a common form not to be literally followed in every suit for foreclosure, but to be adapted to the particular circumstances of each case. The decree does not provide for the exercise by the puisne incumbrancers of their successive rights of redemption or for working out the rights of the parties in the event of any puisne incumbrancer in front of the mortgagor redeeming the mortgaged property so as to make a complete decree. An appropriate decree for that purpose is well known in the Chancery Division of the High Court in England, and a form of it will be found in Seton on Decrees, 6th ed. vol. iii. p. 1979. Probably it is considered that the rights of the puisne incumbrancers are sufficiently protected by the provisions of ss. 74 and 83 of the Transfer of Property Act. But it deserves consideration whether a form of order suitable for use in the Indian Courts might not be adopted in which those rights would be recognised and provision made for the event of their being exercised. The..." defendant" in the decree before their Lordships apparently means the mortgagor only. The time for redemption on the decree was from time to time enlarged, but the money was not paid by the mortgagor. On January 3, 1896, when the enlarged time was about to expire, Gaya Prasad paid into court the sum of Rs. 15,093, and that sum was taken out by the plaintiffs, the first mortgagees, in discharge of their mortgage. On August 3, 1897, Gaya Prasad made an application to the Court that a decree for absolute foreclosure of the mortgaged property might be prepared in his favour. This was successfully opposed by the present respondent. The Subordinate Judge was of opinion that as Gaya Prasad, defendant, paid up the amount due under the decree and complied with the order embodied in the decree, that decree no longer remained capable of execution. He held that Gaya Prasad had become the representative of the prior mortgagee under s. 74 of the Transfer of Property Act, and was entitled to bring a suit for foreclosure, but that he had not acquired the status of a decree-holder, and that while he was defendant he could not execute the decree as decree-holder. He held that Gaya Prasad had become the representative of the prior mortgagee under s. 74 of the Transfer of Property Act, and was entitled to bring a suit for foreclosure, but that he had not acquired the status of a decree-holder, and that while he was defendant he could not execute the decree as decree-holder. The application was, therefore, by an order dated November 6, 1897, dismissed with costs. Gaya Prasad, therefore, on February 3, 1898, commenced the present suit against Bansidhar, Kunj Bihari Lal, the widow and heir of Chaudhri Raj Kunwar (then deceased), and the representative of Munshi Nawal Kishore (then deceased). The plaint contains a statement of all the material circum-stances, but the prayer of it is inartificially framed. In the opinion of their Lordships, however, it was sufficient, with the aid of the prayer for further relief, to enable the Court to give the plaintiff the appropriate relief if he was otherwise entitled to it. The respondent alone appeared and defended. By his written statement he contended that the suit was barred by s. 244 of the Civil Procedure Code, or (in other words) that the questions in issue should have been determined by order of the Court executing the previous decree, and not by separate suit. This contention was in direct opposition to that which he had successfully put forward before the Subordinate Judge. On June 22, 1898, a minute was filed in the suit in which it was stated that a decree absolute for foreclosure had been made in the suit of the second mortgagees (No. 122 of 1893) on May 7, 1898. It was not thought necessary to make the mortgagor and third mortgagee (defendants 3 and 4 in the suit) respondents to this appeal, and both appellant and respondent seem to be agreed that the effect of the order for foreclosure absolute in the circumstances of the case was (as stated in paragraph 7 of the respondents case) that the mortgagor and third mortgagee disappeared from the title, but the respondent retained a right to redeem a moiety of the mortgaged estate by paying to the appellants a moiety of his deposit in court in suit No. 123 of 1893, with, of course; subsequent interest on the principal of such moiety. In these circumstances the Subordinate Judge made a decree dated June 23, 1898, but this decree was not framed in a manner to work out the rights of the appellants and respondent, who had become the only parties interested in the property. On appeal by the respondent against this decree, the learned judges in the High Court held that the application of Gaya Prasad to the Subordinate Judge in the execution* department for an order for foreclosure absolute was the proper and only application he could have made, and ought to have been granted. In the result they held that the present suit was barred by the provisions of s. 244 of the Civil Procedure Code, and that the plaintiff had mistaken his remedy, and should have appealed against the order of November 6, 1897, instead of instituting a separate suit. And by their decree dated December 10, 1901, it was ordered that the decree of the Subordinate Judge be set aside and the suit be dismissed, but no order was made as to costs. Their Lordships cannot agree with the learned judges of the High Court that the respective rights of Gaya Prasad and the respondent, consequent on the redemption by the former of the first mortgage on Patara, could have been worked out in execution of the decree of December 22, 1894, made in suit No. 123 of 1893, and they are of opinion that the order of November 6, 1897, made by the Subordinate Judge on Gaya Prasads application to execute that decree was correct. Foreclosure is by the decree directed only in the event of the sum named not being paid into court on or before the prescribed date. And their Lordships think that on payment by Gaya Prasad of the sum into court before the expiry of the enlarged time, and acceptance of that sum by the plaintiffs, the decree was spent and became discharged and satisfied. There was, therefore, nothing left to be done in the execution department. It is true that Gaya Prasad, having made that payment (as he had the right to do), acquired under s. 74 of the Transfer of Property Act all the rights and powers of the mortgagees as such. But this would not have the effect of reviving or giving vitality to a decree which by the terms of it had become discharged. But this would not have the effect of reviving or giving vitality to a decree which by the terms of it had become discharged. Even if that were not so, their Lordships fail to see how the respective rights of Gaya Prasad, as owner of the first mortgage and half owner of the second mortgage, and the respondent as owner of the other moiety of the second mortgage, could have been worked out without additions to the decree which the Court in executing the decree had no power to make. They are, therefore, of opinion that a new decree was required for the purpose, and s. 244 of the Civil Procedure Code was not a bar to the present suit. The learned counsel for the respondent, no doubt, was conscious of this difficulty, and he contended alternatively that Gaya Prasad might have obtained the relief to which he was entitled in the suit of the second mortgagees (No. 122 of 1893). But Bansidhar and Gaya Prasad were co-plaintiffs in that suit, and it is equally difficult to see how the rights of the plaintiffs inter se in respect of the first mortgage on Patara (which was not in question in that suit) could have been worked out in the decree in suit No. 122 of 1893. Their Lordships will, therefore, humbly advise His Majesty that the appeal should be allowed, and that both the decree of the High Court dated December 10, 1901, and the decree of the Subordinate Judge dated June 23, 1898, should be discharged, and that it should be declared that it appearing that in the events which have happened the appellants, as representatives of Babu Gaya Prasad, the late plaintiff, and the respondent Babu Bansidhar, defendant No. 1, as between themselves have become the owners in equal shares of the village Patara, with the hamlets (naglas) appertaining thereto, in the plaint mentioned, subject to a charge thereon vested in the appellants for Rs. 15,093, being the sum paid into court by Babu Gaya Prasad on January 3, 1896, in suit No. 123 of 1893, together with subsequent interest from the last-mentioned date on the principal money comprised in that sum, the appellants are entitled to a decree in this suit; that upon the respondent Babu Bansidhar, on or before a day to be fixed by the Court, paying to the appellants, or into court, the sum of Rs.7546 8a., being one moiety of Rs. 15,093, together with future interest at the rate of 8 annas per cent, per mensem on Rs. 3550 8a., being one moiety of the principal sum of Rs. 7101 in the plaint mentioned, from January 3, 1896, to the date fixed for such payment, together with the costs incurred by the late plaintiff and the appellants in the Court of the Subordinate Judge of Mainpuri, including any future costs (the aggregate amount of such sums to be ascertained by the Court), the appellants shall accept the sum so paid in satisfaction of their said charge on the said property mentioned in the plaint so far as affects the respondent or his share in the said property; but if payment be not made on or before the said day to be fixed by the Court the respondent shall be absolutely debarred of all right to redeem his said share of the said property, and that each party should bear his own costs of the appeal to the High Court, and the case be remitted to the Court of the Subordinate Judge of Mainpuri to proceed in accordance with the above declaration. The respondent will pay the costs of this appeal.