Judgement Appeal (No. 167 of 1919) from a judgment and decree of the High Court (January 16, 1917) varying a decree of the Subordinate Judge of Agra (February 23, 1915). The suit was instituted in 1914 by the appellant, Musammat Sukhi, against the respondents, of whom Jag Ram and Net Ram, joined pro forma as respondents 4 and 5, did not defend. She sued as holder of a deed executed on October 14, 1902, by Jag Ram and Net Ram hypothecating to her mauza Rasulpur to secure payment to her of Rs. 1250 per annum which they covenanted to pay. By her plaint she prayed for (a) a declaration that a foreclosure decree under Order xxxiv., obtained in 1910 by Ghulam Safdar Khan and others (respondents 1, 2, and 3) against the Jag Ram and Net Ram upon a mortgage by conditional sale made in 1883, was not binding upon her, as she had not been joined as a defendant in the suit, (b) payment of Rs. 10,500 alleged to be due to her under the hypothecation deed, or in default a sale of the property, and (c) a personal decree for any deficiency. The respondents 1, 2 and 3, by their written statement relied (inter alia), upon their decree of 1910, and upon the priority of the mortgages of 1874 and 1875, which they had paid off and that of their own mortgage of 1883. The circumstances in which the suit was brought are stated at the beginning of the judgment of the Judicial Committee. The Subordinate Judge made a preliminary sale decree under Order xxxiv., r. 4, by which he decreed the plaintiffs claim with costs and interest at 6 per cent, per annum, provided she paid into Court within two months Rs. 2954 with interest; that in case of such payment the defendant should have a right to pay off the entire decretal amount within four months ; and that in case of default the plaintiff should recover by sale the debt decreed to her. together with the amount which she might have to pay under the earlier part of the decree. The defendants other than Jag Ram and Net Ram appealed to the High Court, on the ground, amongst others, that the plaintiff was bound to pay off the amount due to them under their mortgage of 1883 before she could sell the property. together with the amount which she might have to pay under the earlier part of the decree. The defendants other than Jag Ram and Net Ram appealed to the High Court, on the ground, amongst others, that the plaintiff was bound to pay off the amount due to them under their mortgage of 1883 before she could sell the property. The plaintiff filed an objection under Order xli., r. 22, contesting her liability to pay the sum of Rs. 2954. The learned judges (Tudball and Rafique JJ.) said " The plaintiff is a puisne mortgagee seeking to enforce her mortgage, the prior mortgagees in their suit having failed to make her a party. It is the duty of the Court to give the plaintiff the opportunity of occupying the position which she would have occupied if she had been a party to the former suit. In our opinion the defendants-appellants are entitled to what they claim, that is that the plaintiff, before she can put to sale the property in mauza Rasulpur, shall pay off to the defendants-appellants not only the amount allowed by the Court below, but also the amount which would be due to them on the mortgage of June 15, 1883. On behalf of the respondents, cross-objections have been filed contesting the plaintiffs right to a payment of Rs. 2954 due on the old mortgages of 1874 and 1875. What we have said above is sufficient to decide this cross-objection." They added that it was not open to the plaintiff to contend that Rs. 8649, the amount decreed to the defendants in the former litigation, was not the amount due upon the mortgage of 1883, as at the trial she had disputed only her liability to pay and not the amount claimed. In the result the appeal was allowed and the decree modified by adding thereto that the plaintiff should pay, in addition to the sum of Rs. 2954, the sum of Rs. 8649 due on the mortgage of 1883 ; the period for payment was increased to six months from the date of the decree. 1921. Feb. 17, 18. Narasimham for "the appellant. The appellant not having been made a defendant to the suit in 1910, was entitled in this suit to an unconditional decree for sale. 2954, the sum of Rs. 8649 due on the mortgage of 1883 ; the period for payment was increased to six months from the date of the decree. 1921. Feb. 17, 18. Narasimham for "the appellant. The appellant not having been made a defendant to the suit in 1910, was entitled in this suit to an unconditional decree for sale. The earlier mortgages, both those of 1874 and 1875 and that of 1883, were extinguished after the former decree Het Ram v. Shadi Lal (( 1918) L. R. 45 I. A. 130.) ; Munna Lal v. Munun Lal. (( 1914) I. L. R. 36 A. 327.) The mortgage of 1883 being by conditional sale and the decree for foreclosure, it cannot be implied that there was an intention that the security should continue to subsist; it was therefore extinguished under s. 101 of the Transfer of Property Act. The only right which the respondents 1, 2, 3 had as to the appellants mortgage was to redeem. The appellant should not have been required to pay the Rs. 2954. The debt formed part of what was mortgaged to her. She was really entitled to receive that sum from the respondents in this suit. Kenworthy Brown for the respondents 1, 2, 3. These respondents had to pay the Rs. 2954 under the former decree ; the appellant was bound to reimburse them as a condition to getting a decree Matru Mal v. Durga Kunwar. (( 1919) L. R. 47 I. A. 71.) The decree in the 1910 litigation was made under Order xxxiv., r. 3, of the Code of Civil Procedure 1908 ; the rules under that Order as to foreclosure and sale decrees do not provide, as did s. 89 of the Transfer of Property Act, 1882, with regard to a sale decree under that section, that the security is extinguished. Het Ram v. Shadi Lal (( 1918) L. R. 45 I. A. 130.) is therefore distinguishable ; in that case the former decree was under s. 89, and the judgment is founded upon the express provision above mentioned. The provision in question does not appear in s. 87 of the Act of 1882, which deals with foreclosure decrees. Het Ram v. Shadi Lal (( 1918) L. R. 45 I. A. 130.) is therefore distinguishable ; in that case the former decree was under s. 89, and the judgment is founded upon the express provision above mentioned. The provision in question does not appear in s. 87 of the Act of 1882, which deals with foreclosure decrees. These respondents were therefore entitled to use the mortgage of 1883 as a shield and to recover the amount due as a condition to a decree in the appellants favour Gokuldoss Gopaldoss v. Rambux Sheochand. (( 1884) L. R. 11 I. A. 126.) The principle of Adams v. Angell (( 1877) 5 Ch. D. 634.) applied in that case applies here. The Code being silent on the question, the principles of justice, equity and good conscience should be applied. Although the appellant is entitled to be placed in the position which she would have occupied had she been made a party to the litigation of 1910, she should not be placed in a more favourable position. [Reference was also made to Mirza Gadalli Beg v. Tukaram. (( 1920) L. R. 47 I. A. 207.)] Narasimham in reply. In Matru Mal’s Case (( 1919) L. R. 47 I. A. 71.) the puisne mortgagee had not claimed an unconditional decree; the only contest in the suit, and upon appeal to the Board, was whether he should pay the amount due on the prior mortgage as if it still subsisted, or only the amount due on the decree. April 19. The judgment of their Lordships was delivered by LORD DUNEDIN. This is a suit by a mortgagee, Musammat Sukhi, to sell a property called Rasulpur. The facts out of which the suit arises are as follows. Nand Ram and others, the owners of the property in question and of other properties, executed on January 3, 1874, and June 10, 1875, two simple mortgages in favour of Kirpa Ram, now deceased, the husband of the plaintiff. Subsequently, on January 15, 1883, they executed another mortgage of the property in question alone by way of conditional sale in favour of the first respondent, Ghulam Safdar Khan and another person whom the second and third respondents now represent. These mortgages were all duly registered. Subsequently, on January 15, 1883, they executed another mortgage of the property in question alone by way of conditional sale in favour of the first respondent, Ghulam Safdar Khan and another person whom the second and third respondents now represent. These mortgages were all duly registered. In 1886, Kirpa Ram, the mortgagee, raised an action for payment and sale, but he omitted to implead the holders of the mortgage of 1883. In that suit he obtained a decree for sale. The property was sold and Kirpa Ram himself purchased at the judicial sale. Kirpa Ram died leaving a will dated in 1895 in favour of his widow, the plaintiff. She obtained probate in 1898. She thereafter made a gift of the properties to which she had succeeded, including the property in question, to Jag Ram and Net Ram her nephews. They at the same time covenanted to pay her Rs. 1200 a year for maintenance, and in security of this obligation they hypothecated the properties, including the property in question, by way of mortgage. The mortgage was dated October 14, 1902, and was duly registered. In 1910 the respondents, the mortgagees in the mortgage of 1883, brought a suit on their mortgage against Jag Ram and Net Ram, but omitted to implead the plaintiff. Jag Ram and Net Ram put forward the mortgages of 1874 and 1875 as a shield and accordingly the respondents had to pay into the Court the sum of Rs. 2954. Having so done and Jag Ram and Net Ram not choosing to redeem the respondents were adjudged owners of the property. This was finally settled in 1913. In 1914 the plaintiff raised the present suit in respect of her mortgage, the sums due under the agreement to pay maintenance amounting to over Rs. 1,00,00. It was not defended by Jag Ram and Net Ram, but appearance was made for the respondents who held the property in virtue of the decree they had obtained in 1913, upon their mortgage of 1883. The Subordinate Judge decreed the suit, but on condition that the plaintiff repaid to the respondents the sum of Rs. 2954 which they had paid to the first mortgagees. On appeal the High Court altered this by adding the condition that the plaintiff should also pay the sum of Rs. The Subordinate Judge decreed the suit, but on condition that the plaintiff repaid to the respondents the sum of Rs. 2954 which they had paid to the first mortgagees. On appeal the High Court altered this by adding the condition that the plaintiff should also pay the sum of Rs. 8649.13.7, being the sum found due to the respondents in the suit of the mortgage of 1883, in respect of which they were given the foreclosure decree of the property. Appeal has now been taken to His Majesty in Council. The appellants counsel relied entirely on the case of Het Ram v. Shadi Lal. (L. R. 45 I. A. 130.) In that case a property had been twice mortgaged by way of simple mortgage, once in 1880, and again in 1881. Het Ram purchased the property from the mortgagee in 1883. In 1885 the mortgagee of 1880 obtained against the mortgagor and Het Ram a decree absolute for sale under s. 89 of the Transfer of Property Act, 1882. He did not implead the mortgagee under the mortgage of 1881. He took no further steps under the decree and the property was not brought to sale. He died, and was succeeded to by Het Ram as his heir. In 1910 the mortgagee under the mortgage of 1881 instituted the suit. It was held that Het Ram could not set up the mortgage of 1880 as a shield, because the decree of 1885 was (1.) barred by limitation, (2.) inoperative as against the plaintiff who had not been made a party to the suit and because the mortgage itself was gone, because of the terms of s. 89 of the Transfer of Property Act, 1882. The appellant urged that the same result followed in this case. The mortgagor of 1883, having omitted to implead the appellant, she was not bound by the decree. The mortgage of 1883 was no longer available, because it was merged in the decree. The respondents on the other hand relied on the case of Matru Mal v. Durga Kunwar. (L. R. 47 I. A. 71.) In that case a property had also been the subject of two mortgages of 1872 and 1879 respectively. The mortgagee of 1872 obtained in 1884 a decree for sale under the same s. 89 of the Transfer of Property Act, 1882, but omitted to implead the second mortgagee. (L. R. 47 I. A. 71.) In that case a property had also been the subject of two mortgages of 1872 and 1879 respectively. The mortgagee of 1872 obtained in 1884 a decree for sale under the same s. 89 of the Transfer of Property Act, 1882, but omitted to implead the second mortgagee. A lady who was an assignee of the second mortgage raised suit in 1909. The owner resisted the decree unless he was paid the whole amount due under the first mortgage with interest calculated at the rate stipulated therein. The plaintiff offered to pay the amount under the decree of 1884, but refused to pay the amount of the mortgage so calculated. The Subordinate Judge gave effect to the condition of the owner. The High Court altered the decree and gave effect to the offer of the plaintiff. The owner then appealed. The Board adhered to the judgment of the High Court. It will be noticed that the plaintiff there offered to pay the sum in the decree of 1884. Het Barns Case (L. R. 45 I. A. 130.) had not at the date of the High Court judgment been decided, and it does not appear to have suggested itself to the plaintiff that she could argue that the effect of s. 89 was to destroy the mortgage of 1872 and prevent its ever being set up again. The headnote of that case, however, bears that it was held that the condition upon which the second mortgagee was entitled to a sale decree was the payment to the decree holder of the amount due under the decree in respect of the first mortgage. If this were really so, it would be necessary to consider how far such a pronouncement could stand beside the decision in Het Rams Case. (L. R. 45 I. A. 130.) In their Lordships view it is not necessary to consider that question. The decision in Het Rams Case (L. R. 45 I. A. 130.) is based on two points, which are, it must be admitted, alternative and not cumulative (1.) that the decree was useless in respect of limitation and (2.) that the second mortgagee had not been impleaded. Although the first point has no application to this case, the second has. The decision in Het Rams Case (L. R. 45 I. A. 130.) is based on two points, which are, it must be admitted, alternative and not cumulative (1.) that the decree was useless in respect of limitation and (2.) that the second mortgagee had not been impleaded. Although the first point has no application to this case, the second has. But the second proposition which was absolutely necessary for the judgment was that the mortgage was gone for ever so soon as the decree of sale was obtained ; and that was based on the express words of s. 89 of the Transfer of Property Act, 1882, which ends after providing for the decree " and thereafter the defendants right to redeem and the security shall both be extinguished." Now the group of sections 85 to 90 inclusive, of the Transfer of Property Act, 1882, were repealed by the Code of Civil Procedure, 1908, and were replaced by the rules under Order xxxiv. In these rules the words above quoted are omitted in the rule which corresponds to s. 89. They do not occur in either the foreclosure section of the Act of 1882 or the corresponding rule of Order xxxiv., which are limited to providing for the extinction of the debt. The difficulty which had arisen as to these words in several cases, e.g., Vanmikalinga Mudali v. Chidambara Chetty (( 1905) I. L. R. 29 M. 37.),— which case it may be mentioned does not seem to have been brought to the notice of the Board in Het Rams Case (L. R. 45 I. A. 130.)— therefore no longer arises. The decree in this case was in 1910, and was, therefore, under the Code of Civil Procedure Rules and not under the section of the Transfer of Property Act, 1882. Now the words being gone their Lordships feel no difficulty in holding that the law remains as it certainly was before the Transfer of Property Act, 1882—namely, that an owner of a property who is in the rights of a first mortgagee and of the original mortgagor as acquired at a sale under the first mortgage is entitled at the suit of a subsequent mortgagee who is not bound by the sale or the decree on which it pro ceeded, to set up the first mortgage as a shield. From this it follows that the omission by the respondent Ghulam Safdar Khan to make the plaintiff a party to the suit instituted by him to execute his mortgage of 1883 does not prevent him from setting up that mortgage in cases where he would have been so entitled before the Act of 1882 ; and the present dispute is within the benefit of this ruling. But then there is the question of the position due to the original mortgages of Rs. 2924, and unfortunately this seems not to have been very carefully considered in the judgment below. The Subordinate Judge held that the defendants were entitled to set up this as a shield, because the defendants had paid this sum to the original first mortgagees as a condition of getting the property ; and that as the plaintiffs title flowed from the first mortgagees, she could have no higher right than the first mortgagees, and must be bound by anything done by them. The High Court seemed to think that the same arguments that applied to the mortgage of 1883 also applied to the earlier mortgages. The situation, however, must be looked at more closely than this. The general principle is stated rightly by the High Court, It is this " The plaintiff is a puisne mortgagee seeking to enforce her mortgage, the prior mortgagee in his suit having failed to make her a party. It is the duty of the Court to give the plaintiff the opportunity of occupying the position which she would have occupied if she had been a party to the former suit." Now the original mortgagee having bought the estate at the sale in the suit was the owner of both the mortgage and the equity of redemption merged in one by the decree of the Court. He was succeeded by his widow and she made the gift to Jag Ram and Net Ram. When they in turn mortgaged to the widow, the present plaintiff, they mortgaged both the original mortgage and the equity of redemption merged as aforesaid. When in the suit of the present defendants on the mortgage of 1883, Jag Ram and Net Ram, so to speak, revived the original mortgage as a shield, they revived something which in a question with the widow they had mortgaged. When in the suit of the present defendants on the mortgage of 1883, Jag Ram and Net Ram, so to speak, revived the original mortgage as a shield, they revived something which in a question with the widow they had mortgaged. Whether the decision of the Court that the sum in the prior mortgages should be made a condition of the decree in the suit was right or wrong—for if Het Rams Case had been decided it would have been wrong, the sale having taken place in 1886—is immaterial, for the present defendants acquiesced in and paid under the judgment. If the widow had been made a party to the suit, as she ought to have been, she would have been entitled in right of her mortgage to have been put in possession of the amount which was being put forward as a shield by Jag Ram and Net Ram against the then plaintiffs and the present respondents. She was not made a party, and the result was that owing to the laches of the present defendants Jag Ram and Net Ram were allowed to carry off in money the part of the estate represented by the value of the first mortgage which they had really impledged by their mortgage to the widow. It follows that to carry out the general principle expressed above, the widow must not be deprived of the rights which had she been called she could have made good. The result must be that unless the respondents pay the plaintiff Rs. 2925 with interest thereon at 6 per cent, from December 3, 1914, the plaintiff must get her decree for sale of so much of the estate as will realize that sum. If, however, the respondents pay that sum or the said sum is realized by sale of part of the estate then the plaintiff can only have decree and sale of the rest of the estate on condition that she pay to the respondents Rs. 8649.13.7, being the sum in the decree of 1883 as brought out by the High Court. The respondents will have a right to recover from Net Ram and Jag Ram the sum wrongly carried off by them in fraud of their own mortgage to the present plaintiff, but the right cannot be given effect to in this suit. 8649.13.7, being the sum in the decree of 1883 as brought out by the High Court. The respondents will have a right to recover from Net Ram and Jag Ram the sum wrongly carried off by them in fraud of their own mortgage to the present plaintiff, but the right cannot be given effect to in this suit. Neither party should have any costs in the Courts below, and any costs paid on order of the Courts below should be returned; the appellants will have the costs of the appeal to His Majesty in Council. Their Lordships will humbly advise His Majesty accordingly.