JUDGMENT : RICHARDS, J. 1. In this case the decree-holders respondents sought to bring certain property to sale in execution of the decree obtained by them. It appears that there was a mortgage in which this particular property was hypothecated in favour of the decree-holders but when they brought their suit they asked for a simple money decree upon the personal covenant to pay, and disclaimed any interest on the mortgage. After having obtained the simple decree for money the decree-holders sought to attach and sell the property the subject-matter of the mortgage. They were met with the objection, that inasmuch as the property was mortgaged property, the provisions of section 99 of the Transfer of Property Act, 1882, rendered it impossible that there should be a sale, save by the institution of a suit under section 67 of the same Act. It has been conceded here and, we think, it would not have been possible to argue otherwise, that when there is a subsisting mortgage, the mortgaged property cannot be sold at the instance of the mortgagee, under a money decree obtained by him. 2. It is, however, argued that the declaration in the suit and at the hearing of the execution case, was in effect the release of the mortgage, and that the mortgage no longer exists. If we were to agree in this argument it would, in our opinion, render the provisions of section 99 of the Transfer of Property Act absolutely nugatory. We are of opinion, that the declaration in the plaint and the statement at the hearing of the case did not prevent the property sought to be sold being mortgaged property within the meaning of section 99, and could not deprive the mortgagor of the rights conferred upon him of redemption and time for payment. In the case of Khairaj Mal vs. Daim, (1905) 2 A.L.J.R. 71, their Lordships of the Privy Council observed that they “throw no doubt on the principle, which has been acted on in many cases in India, that a mortgagee cannot, by obtaining a money decree for the mortgage debt, and taking the equity of redemption in execution, relieve himself of his obligations as mortgagee, or deprive the mortgagor of his right to redeem on account taken, and with the other safe-guards usual in a suit on the mortgage.” 3. For these reasons we think that the objection of the judgment-debtor ought to have been allowed. We accordingly allow the appeal, set aside the order of the lower appellate Court and also that of the Court of first instance with cost in all Courts and allow the objection of the judgment-debtors.