Judgement Appeal from a decree of the Chief Court (April 23, 1907) reversing a decree of the District Court of Amherst (October 3, 1905) and dismissing the appellants suit. The question in the appeal was between the appellant and those defendants who were made respondents as representing the estate of Abdul Guffoor. It related to the title to two plots of land situate in or near Moulmein, in Lower Burma, called hereafter Nos. 1 & 2. The plaint, which was dated May 12, 1903, set .out that by an instrument of mortgage dated July 26, 1890, the two plots in question (Nos. 1 and 2) and two other plots (Nos. 3 and 4) were conveyed by the three owners, who were represented in the parties to the suit, to the firm of M. M. E. M. Chetty to secure Rs.11,000 and interest, and that by an instrument of transfer dated November 8, 1894, the said Chetty assigned for valuable consideration to one Abdul Rahman the whole of his right, title, and interest in the loan and the aforesaid mortgage. The plaint further stated that the plaintiff obtained a decree in the District Court of Amherst, dated December 31, 1901, against Abdul Rahman, ordering (inter alia) the attachment and sale of the mortgage and of the right, title, and interest of the mortgagee thereunder. The plaint further stated that the plaintiff obtained a decree in the District Court of Amherst, dated December 31, 1901, against Abdul Rahman, ordering (inter alia) the attachment and sale of the mortgage and of the right, title, and interest of the mortgagee thereunder. The plaintiff (bidding by permission of the Court) purchased the said mortgage, and by an indorsement on the instrument of transfer after the sale the Court transferred to the plaintiff " this document and the indenture dated July 26, 1890, referred to herein." Abdul Guffoor (who was joined as a defendant by order of the Court dated August 7, 1903, on the petition of Abdul Rahman) in his written statement alleged that the original mortgagors made over the whole of the mortgaged property absolutely to Abdul Rahman in satisfaction of the debt; that Abdul Rahman on March 14, 1895, joined with another in mortgaging the same and other property to him (Abdul Guffoor), and that on July 21, 1902, a foreclosure decree was made by the Court in his favour in default of paying the mortgage debt and interest and costs within six months of the said date; that such default was made; and that thereupon he (Abdul Guffoor) become absolute owner of the said plots with possession.’ He therefore denied that Abdul Rahman had any interest in the said plots at the date of the sale to the appellant by order of the Court (which was August 28, 1902). The prayer of the plaint was for an account and consequential relief against the original mortgagors, the plaintiff alleging that by the equitable mortgage in his favour, the decree of foreclosure thereon, and his purchase at the sale made by order of the Court he was entitled to be placed in the position of the original mortgagees. The District Judge found that there was no evidence of any absolute transfer by the mortgagors to Abdul Rahman. He considered that Abdul Rahman occupied the position of the original mortgagees, and held that the plaintiff had acquired the rights of the original mortgagees. The District Judge found that there was no evidence of any absolute transfer by the mortgagors to Abdul Rahman. He considered that Abdul Rahman occupied the position of the original mortgagees, and held that the plaintiff had acquired the rights of the original mortgagees. The Appellate Court reversed this decision and dismissed the suit on the ground that at the date of sale to the plaintiff Abdul Rahman had no interest in the proper to sold either as owner or as mortgagee, for he had parted with the whole of whatever interest he possessed (see s. 8 of the Transfer of Property Act) by the mortgage of March 14, 1895, to Abdul Guffoor. It refused to consider an argument put forward by the plaintiff that Abdul Guffoors consent decree of foreclosure of July 21, 1902, had been obtained by collusion and fraud on the ground that the same had not been pleaded. J. W. McCarthy, for the appellant, contended that that argument ought to have been considered. The plaint put in issue the plaintiffs full titles to the plots in question as equitable mortgagee, holder of foreclosure decree, and purchaser at the Court sale, with consequent transfer to him by the Court. The title alleged was not limited merely to that of decree-holder, and even if it had been, such title was complete against that of the original mortgagors, and neither Abdul Rahman nor Abdul Guffoor alleged any better title. Moreover, the plaintiff was entitled to priority over Abdul Guffoor, first, because Abdul Guffoor failed to get the title deeds or subsequently, having parted with them, enabled the mortgagor to obtain advances from the plaintiff, and was thereby guilty of gross neglect within s. 78 of Act IV. of 1882; second, because, having taken a conveyance from the Court after purchase by him at an auction sale ordered by the Court, he had acquired an indefeasible title thereto independently of his title as equitable mortgagee and decree-holder; third, because Abdul Guffoor had as usufructuary mortgagee no right to a foreclosure decree, and fraudulently obtained the same by collusion with Abdul Rahman, the appellant being no party thereto, although he had a year previously himself obtained a similar decree in respect of the same property, a fact which was concealed from the Court. Further, it was contended that Abdul Rahman being only a mortgagee could not himself grant a mortgage, and that the deed by which he purported so to do was null and void and could not be converted into a transfer of the original mortgage by virtue of s. 8 of Act IV. of 1882. The foreclosure decree, therefore, of July 21, 1902, in Abdul Guffoors favour was also a nullity, for it purported to be a foreclosure of a mortgage which Abdul Rahman had no power to grant. It was not a foreclosure of the original mortgage, the original mortgagors were not parties, and their equity to redeem was not in terms affected by the decree. The respondents did not appear. The judgment of their Lordships was delivered by LORD MACNAGHTEN. This is an appeal in a mortgage suit. It was heard ex parte. It is the appeal of the plaintiff from a judgment and decree of the Chief Court of Lower Burma on its appellate side, reversing a judgment and decree of the judge of the District Court of Amherst, which was in the plaintiffs favour, and dismissing his suit with costs. Owing to the confused state of the record and the manner in which the case was presented to the Courts below, their Lordships have felt more than the ordinary difficulty which attends an ex parte hearing in dealing with the materials placed before them. They find it impossible to pronounce a final judgment without serious risk of doing injustice to one or other of the two parties principally concerned. Some of the facts are beyond dispute. On July 26, 1890, four persons, who are all dead and are now represented by the first eight respondents, mortgaged four plots of ground, Nos. 1, 2, 3, and 4, in or near Moulmein, to the firm of M. M. R. M. Chetty, for the purpose of securing Rs.11,000 and interest. The mortgage is exhibit B. On November 8, 1894, the Chetty firm assigned the mortgage debt and transferred the security for it to one Abdul Rahman. The transfer is exhibit A. In October, 1895, Abdul Rahman deposited the title deeds of the mortgaged property (exhibits A and B) with the plaintiff by way of equitable mortgage. The mortgage is exhibit B. On November 8, 1894, the Chetty firm assigned the mortgage debt and transferred the security for it to one Abdul Rahman. The transfer is exhibit A. In October, 1895, Abdul Rahman deposited the title deeds of the mortgaged property (exhibits A and B) with the plaintiff by way of equitable mortgage. In 1901 the plaintiff brought a suit (No. 77 of 1901) against Abdul Rahman, Abdul Rahman’s father Eman Saib, and others, to enforce certain mortgage securities, including that created by the deposit of exhibits A and B. On December 31, 1901, the District Court of Amherst found that the deposited title deeds were held by the plaintiff by way of equitable security, and a decree for sale was pronounced in default of payment. Payment was to be made before July 10, 1902. In pursuance of this decree, the right, title, and interest of Abdul Rahman in the property comprised in the deposited deeds, exhibits A and B, were put up for sale on August 28, 1902. The plaintiff, who had the leave of the Court to bid, was declared the purchaser for Rs.5,000. A certificate to that effect, under the hand of the District Judge and the seal of the Court, was indorsed on exhibit A. So far there seems to be no room for dispute, and if it had not been for a claim put forward on behalf of one Abdul Guffoor, whose brother was married to Abdul Rahman’s sister, the decree of the District Court would seem to have been substantially right under the circumstances. Abdul Guffoors claim was brought on the record in the following manner. On the present suit being instituted, Abdul Rahman presented a petition, asking that he and Abdul Guffoor might be made parties. His story was that, after the assignment to him of the mortgage debt, the mortgage was satisfied by the mortgagors making over to him all the mortgaged property, and that he mortgaged the property No. 2 to Abdul Guffoor, who filed a suit against him, obtained a decree for foreclosure, and thus became the owner of the property. By consent, Abdul Guffoor was added as a defendant. By consent, Abdul Guffoor was added as a defendant. He put in a written statement, in which he alleged that Eman Saib and Abdul Rahman, as owner, mortgaged to him, amongst other property, plots 1 and 2 by a registered deed dated March 14, 1895 ; that he brought a suit for foreclosure (No. 118 of 1902); that a decree was passed in his favour for payment or foreclosure ; that default was made in payment; and that he thus became the absolute owner of the mortgaged property. No amendment was made in the statement or in the prayer of the plaint in consequence of Abdul Guffoor being added as a defendant. The following issues, with others which are not now material, were framed by the judge — 1. 1. Was exhibit B executed by the parties named as mortgagors ? 2. 2. Was the mortgaged property made over to Abdul Rahman in satisfaction of the debt ? 3. 3. Did Abdul Rahman mortgage properties 1 and 2 to Abdul Guffoor ? 4. 4. Did this property, by virtue of the decree in No. 118 of 1902, become the absolute property of the defendant Abdul Guffoor ? 5. 5. What rights, if any, did the plaintiff acquire by his purchase of the bonds, exhibits A and B. 6. 6. To what relief is the plaintiff entitled ? On October 3, 1905, the District Judge delivered judgment. He found that exhibit B was duly executed, and that the mortgaged property was not made over to Abdul Rahman in satisfaction of the mortgage debt. Abdul Guffoor, though represented by counsel at the hearing, did not offer himself as a witness, nor was there any evidence on his behalf beyond the production of the registered deed of March 14, 1895, and the decree in the suit No. 118 of 1902, dated July 21, 1902. He seems to have rested his case on Abdul Rahmans story, which was disbelieved, and not to have claimed the rights of a mortgagee in any event. As he did not go into the witness-box, there was no explanation of the fact that? notwithstanding the alleged mortgage to him, the title deeds, exhibits A and B, were left with Abdul Rahman, a circumstance which, unexplained, would justify the postponement of his security, if any, to the security of the plaintiff created by the deposit of those deeds. As he did not go into the witness-box, there was no explanation of the fact that? notwithstanding the alleged mortgage to him, the title deeds, exhibits A and B, were left with Abdul Rahman, a circumstance which, unexplained, would justify the postponement of his security, if any, to the security of the plaintiff created by the deposit of those deeds. It is to be observed that the suit No. 118 of 1902 was instituted early in the month of July, 1902. The decree was made by consent on the 21st of that month. Now July 10, 1902, was the date fixed for payment in the plaintiffs suit, No. 77 of 1901. It is difficult to imagine that Abdul Guffoor was in ignorance of what had been done in that suit. There seems to be ground for supposing that the suit No. 118 of 1902 was instituted for the purpose of defeating the decree in the suit No. 77 of 1901 in so far as it related to exhibits A and B. However that may be, it is material to bear in mind that the plaintiff was not made a party to No. 118 of 1902, nor was the decree served on him, and therefore his rights, whatever they may have been, remained unaffected by the decree in that suit. In August, 1902, Abdul Rahman, who, according to his own account, had at the time no interest in the mortgaged property, brought a suit, No. 159 of 1902, against the plaintiff, to have it declared that the mortgage of July 26, 1890, exhibit B, and the assignment of November 8, 1894, exhibit A, did not form any portion of the mortgaged property affected by the decree in No. 77 of 1901. On August 28, 1902, suit No. 159 of 1902 was dismissed with costs. The learned judge of first instance, dealing with the present case, was of opinion that, as issue No. 2 had been decided in the negative, there was no need to go into issues Nos. On August 28, 1902, suit No. 159 of 1902 was dismissed with costs. The learned judge of first instance, dealing with the present case, was of opinion that, as issue No. 2 had been decided in the negative, there was no need to go into issues Nos. 3 and 4, and, after observing that the plaintiff had waived his claim to any lien on properties 3 and 4, decided that the plaintiff had acquired the rights of the original mortgagee, as contained in exhibit B, in respect of properties 1 and 2, and he came to the conclusion that the plaintiff was entitled to a mortgage decree on properties 1 and 2 to the extent of Rs.11,000 with interest. As it was not asserted by any of the defendants that any portion of the principal and interest due on the mortgage, exhibit B, had been paid, the learned judge did not think it necessary to direct an account of what was due on the mortgage, though it was asked for by the plaint. From this decree the representatives of Abdul Guffoor, who was then dead, alone appealed. Judgment on the appeal was given on April 23, 1907. The Chief Judge did not dissent from the judgment of the Court below on issue No. 2, but he held that the deed of March 14, 1895,—which on the face of it appears to be a mortgage by an owner in fee, and was at most a sub-mortgage, as Abdul Rahman was not the owner of the property, but transferee of the mortgage, exhibit B,—operated to transfer to Abdul Guffoor the whole right and interest of Abdul Rahman in the mortgage, exhibit B, assigned to him by exhibit A. " The deed," he observes,—that is, the deed of March 14, 1895,—" was executed and registered long before the plaintiff bought whatever he did buy in execution of his decree against Abdul Rahman, and consequently the latter at the time of the sale had no interest in the property in suit either as owner or mortgagee." That view seems to their Lordships to be quite untenable. Indeed it does not appear to have been suggested by anybody at the hearing before the Chief Court. Indeed it does not appear to have been suggested by anybody at the hearing before the Chief Court. The view of Hartnoll J., who was the other judge in the Chief Court, was not the same as that of the Chief Judge, but it seems to be equally untenable. He thought the plaintiff must be "held to have stood in Abdul Rahman’s shoes in every respect." " He did not," the learned judge adds, "satisfy the decree," that is, the decree of July 21, 1902, " and so by the terms of it he lost all interest that he obtained in the property by his purchase at the Court sale on January 21, 1903." The sale was on August 28, 1902. The error in date is immaterial. But it is difficult to see how the plaintiff could be barred or affected by a decree in a suit to which he was not a party. Their Lordships are therefore of opinion that the judgment of the Chief Court should be reversed, with costs to be paid by the appellants in that Court, the representatives of Abdul Guffoor, the decree of the District Judge discharged, and the suit remanded to the District Judge for findings on issues 3 and 4, with an inquiry as to priority between the plaintiff and Abdul Guffoor, and for retrial. The District Judge will deal with the costs not dealt with by this judgment. Their Lordships will humbly advise His Majesty accordingly. The last three respondents, the representatives of Abdul Guffoor, who alone appealed to the Chief Court, will pay the costs of the appeal.