JUDGMENT : KNOX, J.:— In order to clear the ground for a decision in this case I deem it expedient to set out the facts, out of which the order in execution and this second appeal, which has resulted from that order, have arisen. On the 11th of July, 1879, one Harbhajan executed a mortgage-deed over 2½ biswas of property in favour of one Mahtab Singh, who is one of the respondents in this appeal. After Harbhajan's death, Mahtab Singh brought a suit against the heirs of Harbhajan upon the deed in his favour and obtained a decree for sale under section 88 of the Transfer of Property Act. He sued out execution, brought the mortgaged property to Bale, and in his own person became the purchaser thereof on the 20th December, 1899. 2. It so happened, however, that Balwant Singh, heir of Har-bhajan, had, on the 2nd of January, 1883, executed a deed of mortgage over the same property in favour of the present respondents, Sher Singh and Mahtab Singh, who are said to be a joint Hindu family living jointly, and again on the 23rd of July, 1883, the same Balwant Singh had executed a further mortgage-deed over part of the same property in favour of Murlidhar, the present appellant. Mahtab Singh and Sher Singh brought a suit upon foot of their mortgage, and on the 30th of September, 1899, obtained a decree against the property mortgaged to them. To this decree, Balwant Singh and Murlidhar were made parties. On the 26th of March, 1903, Mahtab Singh and Sher Singh applied to the Court for an order absolute for sale of the property mortgaged to them. Murlidhar objected on the ground that the property over which the applicants asked for an order absolute for sale has already been sold in satisfaction of a prior mortgage and purchased by Mahtab Singh, who was decree-holder in that suit. The Court of first instance sustained the objection, but in appeal the objection was overruled and order given that the decree absolute be prepared. It is now contended that the latter order is an order which cannot be passed. The learned Vakil for the objector-appellant, based his arguments against the order appealed from mainly upon the ground that Mahtab Singh was the owner of the property, and being such owner, he could not bring his own property to sale.
It is now contended that the latter order is an order which cannot be passed. The learned Vakil for the objector-appellant, based his arguments against the order appealed from mainly upon the ground that Mahtab Singh was the owner of the property, and being such owner, he could not bring his own property to sale. In support of his contention he relies upon certain remarks made by a Full Bench of this Court in the case of Sundar Singh v. Bholu Singh, [1898] I.L.R., 20 All., 322.. The Full Bench, see page 324, observed that a holder of two independent mortgages over the same property, who is not restrained by any covenant in either of them, can obtain a decree for sale on each of the mortgages in a separate suit. They added, “What benefit the two decrees will be to the plaintiffs it is difficult to see, except that the plaintiffs may execute one of these decrees by sale of the property, and, if there is a surplus arising from the sale, they may probably attach that surplus in execution of the other decree. One thing is quite clear, that the plaintiffs cannot sell the property twice over, and they cannot sell under the second decree subject to the first.” It is this passage upon which appellant's counsel relies. In the case just quoted, however, the plaintiffs, mortgagees, and the defendant, mortgagor, were the same persons and the mortgagees having obtained a decree for sale and having executed it by sale would become full owners of the property mortgaged. In the case before ??? Mahtab Singh even after his purchase on the 20th of December, 1899. did not become full owner of the mortgaged property, for it was at the time he made his purchase subject to two other mortgages. I see nothing in section 89 of the Transfer of Property Act, which bars Sher Singh and Mahtab Singh from getting an order absolute for sale. This being so, I dismiss the appeal with costs.