Judgement Appeal from a judgment and decree of the High Court (January 27, 1916) modifying a decree of the additional Subordinate Judge of Aligarh. The suit was instituted by the deceased respondent in July, 1909, to obtain a decree for the sale of certain immovable property under a mortgage dated June 12, 1879, assigned to the respondent on May 21, 1909. The defendants were the respondents, who on February 28, 1884, had obtained a decree for the sale of the property under a mortgage to them dated February 19, 1872, and had bought the property at the sale under the decree. The mortgagee under the mortgage of 1879 was not made a party to the proceedings in 1884. The mortgagors were also defendants to the present suit, but were not parties to the appeal. 66 Law. Rep. 47 Ind. App. 71 ( 1919- 1920) Matru Mal V. Durga Kunwar 167 The Subordinate Judge gave the respondent a decree conditional upon her paying the appellants the amount which would have been due under the mortgage of 1872. The High Court modified the decree in the manner appearing from the judgment of their Lordships. The learned judges in the High Court (Sir H. Richards C.J. and Rafique J.) in the course of their judgment said " As soon as the decree of February 28, 1884, was passed the mortgage debt merged in the decree. It is a mere accident that the answering defendants are the mortgagees under the mortgage of February, 1872, or their representatives. They have no greater rights than any stranger would have had who had purchased the property under the mortgage decree and paid cash for it. In our judgment all that the answering defendants are entitled to is to set up the amount of the decree of February 28, 1884." 1919. Nov. 11. E. B. Raikes for the appellants. The decree of the Subordinate Judge was rightly made. The matter is governed by the decision of the Board in Umes Chunder Sircar v. Zahoor Fatima (L. R. 17 I. A. 201.), the facts in which are not distinguishable. That decision is not affected by Het Ram v. Shadi Lal. (L. R. 45 I. A. 130.) In the present case there was no evidence that a final order had been made under the Transfer of Property Act, 1882. That decision is not affected by Het Ram v. Shadi Lal. (L. R. 45 I. A. 130.) In the present case there was no evidence that a final order had been made under the Transfer of Property Act, 1882. The mortgages in this case were anterior in date to the Transfer of Property Act, 1882, and the procedure consequently was not regulated by Het Rams Case. (L. R. 45 I. A. 130.) [Reference was also made to Gopal v. Pirthi Singh. (( 1902) L. R. 29 I. R. 118.)] Parikh for the respondent. It was decided in Het Rams Case (L. R. 45 I. A. 130.) that upon a sale decree being obtained under s. 89 of the Transfer of Property Act, 1882, the mortgage in suit is extinguished. That decision is conclusive in the respondents favour. In Umes Chunders Case (L. R. 17 I. A. 201.) both the mortgage and the decree were before the Transfer of Property Act, 1882, the provisions of which were therefore immaterial to the case. The present case is governed entirely by that Act, which in 1884 provided the only procedure by which a sale decree could be obtained under a mortgage. It is to be presumed that a final decree was made before the property was sold. Raikes replied. The judgment of their Lordships was delivered by SIR JOHN EDGE. This is an appeal from a decree, dated January 27, 1916, of the High Court at Allahabad, which modified a decree, dated July 8, 1914, of the additional Subordinate Judge of Aligarh. In the suit in which this appeal has arisen the appellants here or those whom they represent were defendants, and the plaintiff was Musammat Durga Kunwar, who was the respondent to this appeal but is now dead ; her personal representative is now the respondent. The suit was brought on July 8, 1909, by Musammat Durga Kunwar to obtain a decree for the sale of certain immovable property within the jurisdiction of the Court of the Subordinate Judge, and was based upon a mortgage of the property dated June 12, 1879, of which she became the assignee on May 21, 1909, by an assignment from the representatives of one Murli Dhar, to whom the mortgage of June 12, 1879, had been granted ; his mortgage was the second mortgage on the property. The property had been mortgaged on February 19, 1872, to the predecessors in title of the present appellants for Rs. 3,750, with compound interest at 15 per centum per annum with yearly rests. On February 6, 1884, the first mortgagees brought a suit for sale under the Transfer of Property Act, 66 Law. Rep. 47 Ind. App. 71 ( 1919- 1920) Matru Mal V. Durga Kunwar 168 1882, on their mortgage, but did not make Murli Dhar, the second mortgagee, a party to their suit. On February 28, 1884, the first mortgagees obtained a decree in their suit for Rs. 9,342, annas 12, for principal and interest due on this mortgage at the date of their suit, for Rs. 29, annas 13, pies 7, in respect of interest from the date of their suit to the date of their decree, and for further interest at the rate of 6 per centum per annum on the decretal amount until payment, and for costs. By the decree the mortgaged property should in default of payment be sold to realize the amount decreed. An order for sale was made and the property was sold on March 20, 1890, by public auction and was purchased by the first mortgagees for Rs. 13,702, annas 6, pies 3, the amount due under the said decree of February 28, 1884. Formal possession was given to the purchasers on August 15, 1890, but they did not obtain actual possession until the end of 1895. In the present suit the defendants claimed that the plaintiff had no right to a decree unless she paid the entire amount of the first mortgage, with compound interest at 15 per centum per annum to the date when the purchasers at the sale of March 20, 1890, got actual possession, together with some revenue and irrigation charges, amounting in all to Rs. 55,155, annas 13, pies 2. The Subordinate Judge, no doubt acting on the decision of the Board in Umes Chunder Sircar v. Zahoor Fatima (L. R. 17 I. A. 201.), gave Musammat Durga Kunwar a decree for sale conditional on her paying to the defendants Rs. 49,124, annas 9. From that decree Musammat Durga Kunwar appealed to the High Court. 55,155, annas 13, pies 2. The Subordinate Judge, no doubt acting on the decision of the Board in Umes Chunder Sircar v. Zahoor Fatima (L. R. 17 I. A. 201.), gave Musammat Durga Kunwar a decree for sale conditional on her paying to the defendants Rs. 49,124, annas 9. From that decree Musammat Durga Kunwar appealed to the High Court. The High Court in the appeal rightly held that the first mortgagee purchasers " had no greater rights than any stranger would have had who had purchased the property under the mortgage decree and paid cash for it." The learned judges said "In our judgment all that the answering defendants (the mortgagee purchasers) are entitled to is to set up the amount of the decree of February 28, 1884." But as Musammat Durga Kunwar had by her petition of appeal only asked that the sum of Rs. 49,124, annas 9, should be reduced to Rs. 23,311, which she professed herself willing to pay, the High Court modified the decree to that extent. From that decree of the High Court this appeal has been brought. At the time when the High Court delivered judgment the case of Het Ram v. Shadi Lal (L. R. 45 I. A. 130.) had not been before the Board. That case decided that an order made under s. 89 of the Transfer of Property Act, 1882 (Act IV. of 1882), for the sale of mortgaged property, has the effect of substituting the right of sale thereby conferred upon the mortgagee for his rights under the mortgage, and the latter rights are extinguished. When the decree or order for sale in the case of Umes Chunder Sircar v. Musummat Zahoor Fatima (L. R. 17 I. A. 201.) was made the Transfer of Property Act, 1882, had not been passed and the procedure prescribed by that Act for suits for sales under that Act did not exist; that case was decided on the law as it then stood. Their Lordships will humbly advise His Majesty that this appeal should be dismissed with costs, and that the decree of the High Court under the circumstances be confirmed.