JUDGMENT B. Upadhya, J. - This is a defendants' appeal arising out of a suit for the recovery of dues in respect of a simple mortgage dated the 26th October, 1925, executed by one Wajahat Husain, defendant No. 9, in favour of Musammat Mahmudunnissa, the original plaintiff, who died during the pendency of the case leaving the present appellants as her heirs and legal representatives. Subsequent transferees were also impleaded and were the other defendants in the case. 2. Wajahat Husain executed a simple mortgage of some of his properties in favour of Sumer Chand and Jagmendardas for Rs. 2,000 on the 28th February, 1923. Thereafter he executed a second mortgage for Rs. 8,000 on the 8th of August, 1925, hypothecating the properties already mortgaged and some other properties in favour of one Chiranjilal, father of Sumerchand and Jagmendardas. A third mortgage was the one dated the 26th October, 1925, which is the basis of the suit giving rise to this appeal 3. In 1931 the heirs of Chiranjilal brought Suit No. 110 of 1931 On the basis of the second mortgage dated the 8th of August, 1925, and impleaded Mst. Mohammadunnissa as a subsequent mortgagee and obtaining a decree got the properties sold on the 20th August, 1926 and purchased it themselves. These heirs, the defendants Nos. 4 to 8, are the present appellants and are new by the purchase aforesaid the owners of the property that was mortgaged by Wajahat Husain. It appears that defendants 1 and 3 had purchased some of these properties in execution of two simple money decrees passed by the Revenue Court for arrears of rent during the pendency of the above mortgage suit but after the sale in the mortgage decree they lost the rights that they had thus acquired. 4. Sumerchand and Jagmander Das, defendants 4 and 6 brought suit No. 384 of 1934 on foot of the first mortgage and obtained a decree on the 17th July, 1936, which was made final on the 9th February, 1942. 5. 4. Sumerchand and Jagmander Das, defendants 4 and 6 brought suit No. 384 of 1934 on foot of the first mortgage and obtained a decree on the 17th July, 1936, which was made final on the 9th February, 1942. 5. In the present suit filed by the third mortgagee the defendants 4 to 6 have pleaded inter alia that as they had purchased the properties in suit in execution of a decree passed on an earlier mortgage in a suit to which the plaintiff as a subsequent mortgagee was a party, all the rights which the plaintiff had acquired under the subsequent mortgage has been extinguished. It was contended that the plaintiff had the option of redeeming the prior mortgage which was sought to be enforced in that earlier litigation; and as he had not exercised that option, it was not open to him now to enforce the mortgage. It was pleaded in the alternative that in any event he was bound to pay the entire amount of the earlier mortgages before appropriating any part of the sale proceeds towards his own mortgage. 6. The learned Munsif after considering the effect of the amendment made to S. 101 of the Transfer of Property Act held that the plaintiff was entitled to get the property sold subject to the prior mortgages in favour of defendants 4 to 8 and he passed a decree accordingly. The defendants went up in appeal and the lower appellate court agreed with the view taken by the learned Munsif and with certain alterations in the list of properties to be sold upheld the decree of the trial court. The learned counsel for the appellants has invited my attention to the words of the final decree dated the 4th August, 1933 which was passed in the suit brought on the foot of the second mortgag: dated the 8th August, 1935, and to which Mst. Mahmuddunnissa, the subsequent mortgagee, was a party. The relevant passage is muddaleh ya uski janib se kisi aur sakhsa ne ya d(sic)ar sakhsa ne jo rehan mazkur ko mun(sic)q karane ka mustahaq ho, hanoz ada nahin kiya 7. Meaning thereby that the defendant or anybod(sic) else on his behalf or any other person entitled to redeem Has not yet made the payment. It is contended that Mst. Mahmud-un-nissa being a defenc(sic)ant in that case was bound by the final decree as passed. Meaning thereby that the defendant or anybod(sic) else on his behalf or any other person entitled to redeem Has not yet made the payment. It is contended that Mst. Mahmud-un-nissa being a defenc(sic)ant in that case was bound by the final decree as passed. Her failure to redeem debars her from claiming any other right under her mortgage and all the rights that she had as a subsequent mortgagee had thus been extinguished. 8. Reliance was placed on a decision of the Privy Council in Sri Gopal v. Pirthi ILR 24 All 429. That was a case where a fifth mortgagee had brought a suit for sale to enforce his mortgage and had impleaded all the four prior mortgagees as defendants. Mortgagee No. 4 in that suit had not set up his mortgage bond. When he brought a suit to enforce his mortgage which was a fourth one it was contended on behalf of the fifth mortgagee who had obtained a decree in his favour that inasmuch, as the fourth mortgagee had not set up his mortgage bond in the earlier suit, the action was barred by S. 13 of the Code of Civil Procedure, 1888. The courts in India upheld that contention. The High Cour in its judgment said: In our opir ion not only might the representatives of Ishur Das have pleaded their mortgage of the 7th of February, 1874, but they ought to have done so; and if the)' had done so no decree for sale could have been made without these rights being protected by the decree. They not having done what they might and ought to have done as an answer pro-tento to the fruit of Sri Ra, n, we are of opinion that S. 13 of the CPC applies 9. Sir Ford North in delivering the opinion of the Judicial Committee approved the view taken by the courts in India and observed: The appellant would have been entitled to plead and prove this bond as a bar to any decree being made for sale except subject to that bond. Had he done so, it would have been included in the "details of liens" at the end of decree, and the right of Mst. Janki would have been expressly subordinated to that charge also. The judgments are clearly right. 10. Had he done so, it would have been included in the "details of liens" at the end of decree, and the right of Mst. Janki would have been expressly subordinated to that charge also. The judgments are clearly right. 10. The head-note of the case at page 429, however also says: In the same way, if, being a party to a suit on a mortgage prior to his own, he omits to claim his right to redeem under prior mortgage, he cannot afterwards sue for that purpose on the mortgage he has omitted to plead 11. The judgment delivered by Sir Ford North does not contain any such passage. The note appears to be based on some observations at page 433 to the effect that a subsequent mortgagee could have asserted his right to redeem the prior mortgages when he was impleaded in the suit brought to enfere those mortgages and "If this had been done he could have got then what he seeks now and the necessity for this suit would have been avoided. Some other cases were cited which were cases in which a subsequent mortgagee had not been impleaded as a defendant to the suit filed to enforce an earlier mortgage and it was laid down that as the subsequent mortgagee had not been impleaded by the prior mortgagee when he sought to enforce his mortgage, the subsequent mortgagee had the right to bring a suit for sale on the basis of his now mortgage. These cases do not appear to be directly helpful. The contention, however, of the appellants is based on well known principles relating to transfer of property. When the mortgage dated the 8th of August, 1925 was executed by the mortgagor who was the owner of the property hypothecated, some rights were transferred to the mortgagee and what remained with the owner was the equity of redemption. When he again mortgaged the property on the 20th October, 1925 in favour of the present plaintiffs, the owner carved out of the equity of redemption same interest which he transferred to this subsequent mortgagee. He could not transfer anything more. This lain mortgagee was no doubt entitled to enforce his mortgage by bringing the property to sale, but this he could do only subject to the earlier mortgages. He could not transfer anything more. This lain mortgagee was no doubt entitled to enforce his mortgage by bringing the property to sale, but this he could do only subject to the earlier mortgages. When the prior mortgagee filed the suit on the basis of his mortgage, he was entitled to get the property mortgaged sold, but before the sale could be effected, an opportunity had to be given to the owner or owners of the equity of redemption to pay off the decretal amount. As the equity of redemption which had remained with the owner when he executed the prior mortgage, had also been transferred to the subsequent mortgagee, the latter acquired a right to redeem the prior and to pay off the decretal amount if a decree was passed on foot of the prior mortgage. The right which the prior motrgagee had was to bring the property to sale for the realisation of his money but as the equity of redemption vested in the owner as well as the subsequent mortagee on the date of the suit, they were both impleaded and they both had the right to pay off the mortgage money or decretal amount so that the property may not be sold. As the owner and the subsequent mortgagee who were the parties to the suit had failed to exercise their right of redemption within the period provided under the decree, a final decree was passed directing the sale of the property. The subsequent mortgagee's right to redeem was therefore lost. Against the prior mortgagee, he had obviously no other right; and I am unable to appreciate the contention that the subsequent mortgagee can bring the property to sale again. 12. Learned counsel for the respondents has argued that S. 57 of the Transfer of Property Act gives the plaintiff as a mortgagee the right to obtain a decree that the property be sold. This right cannot be said to have been lost by the fact that he was impleaded in the suit filed by the prior mortgagee. 12. Learned counsel for the respondents has argued that S. 57 of the Transfer of Property Act gives the plaintiff as a mortgagee the right to obtain a decree that the property be sold. This right cannot be said to have been lost by the fact that he was impleaded in the suit filed by the prior mortgagee. Reliance is also placed on S. 101 of the Transfer of Property Act which reads as follows : Any mortgagee of, or person having a charge upon, immovable property, or any transferee from such mortgagee or charge-holder, may purchase or otherwise acquire the rights in the property of the mortgagor of owner, as the case may be, without thereby causing the mortgage or charge to be merged as between himself and any subsequent mortgagee of, or person having a subsequent charge upon, the same property; and no such subsequent mortgagee or charge-holder shall be entitled to foreclose or sell such property without redeeming the prior mortgage or charge, or otherwise than subject thereto 13. It is urged that this section also provides that the property may be put to sale by the subsequent mortgagee and all that is required is that the prior mortgage should be redeemed or that the sale should be made subject to the prior mortgage. 14. Both the courts below have held that S. 101 of the Transfer of Property Act was applicable to the facts of the case and they have taken the view that the plaintiff is entitled to get the property sold subject to the earlier mortgages. To my mind, S. 101 only lays down that if a mortgagee or charge holder purchases the property, there will be no merger of the mortgage or charge and the ownership rights so as to extinguish the mortgage or the charge. The section provides that when a suqsequent martgagee or a charge holder wants to get the property sold, he shall have to either redeem the prior mortgage or charge or get the sale effected subject to such prior mortgage or charge or get the sale effected subject to such prior mortgage or charge. An illustration might be helpful in understanding the rule enunciated. An illustration might be helpful in understanding the rule enunciated. A, the owner of the property mortgages it to X and later to Y. X purchases the property from A. The fact that X a mortgagee has also become the owner should ordinarily bring about a merger of the two rights-those of the mortgagor and the mortgagee, but the section provides that when Y sues to get the property sold in enforcement of his mortgage he can do so only subject to the prior mortgage in favour of X. When A the owner executed the first mortgage in favour of X, he retained an enquity of redemption as an owner. Then he made a second transfer infavour of Y. Some rights were carved out of what he possessed in favour of Y and what again remained with him was an equity of redemption. The rights carved out in favour of Y included a right to redeem X. When X purchases the rights of A he (sic)en becomes possessed of two rights, his own mortgagee rights under the first mortgage and those rights of A as owner which had remained vested in him after the execution of the second mortgage. The rights of A which were purchased were those rights which could be brought to sale by Y in enforcement of his mortgage Therefore when Y brings a suit to enforce his mortgage, he has the right to get the property sold, but at the same time the rights which have been carved out before his mortgage and had vested in X could not be ignored in thinking of the complete ownership rights. This statutory provision only recognizes the principles governing the priority of mortgages; and as under the old provision there was a divergence of judicial opinion as to whether the prior mortgage was o(sic) was not extinguished unless the mortgagee expressly kept it alive, this section wan modified so as to clarify the position and the rule now as enunciated is that it would not be necessary for a prior mortgagee to prove that he had kept his mortgage alive notwithstanding the purchase by him of the ownership rights and the subsequent mortgagee may enforce his mortgage only subject to the prior mortgage. I fail to see how this rule was made applicable to the facts of the present case. I fail to see how this rule was made applicable to the facts of the present case. The question in the present case is as to whether the rights of the subsequent mortgagee to re(sic)eem had been lost for ever because he did not redeem the prior mortgage during the period provided by the preliminary decree in the suit brought on the prior mortgage to which he was a party. S. 94 of the Transfer of Property Act lays down that Where a property is mortgaged for successive debts to successive mortgagees, a mesne mortgagee has the same rights against mortgagees posterior to himself as he has against the mortgagor 15. The second mortgagee in execution of whose decree the property was sold away had under the above section the same rights against the present plaintiff which he had against the mortgagor. The right which the second mortgagee possessed against the mortgagor was to get the property sold and he had the same right against his subsequent transferee the present plaintiff. 16. The subsequent mortgagee having failed to pay off the mortgage money and the property having been sold away no rights can be said to be subsisting in the subsequent mortgagee so far the property mortgaged is concerned. In Nannu Mal v. Ram Chander & others 1931 A.L.J.R. 273, a Full Bench decision of this Court Sulaiman, J. (as he then was) observed at page 283 as follows: No doubt the decree on the previous mortgage is not binding on the subsequent mortgagees, who had not been impleaded, to this extent that their rights under their mortgage have not been extinguished, as would have been the case if they had been impleaded and had not redeemed the prior mortgagee. 17. This observation was quoted with approval in a case decided by five learned Judges of this court in Ram Svnehi Lal V. Janki Prasad (4). In the latter case Sir Lal Gopal Mukerji, J. has given a lucid analysis of the respective rights of a mortgagor and mortgagees. The passage deserves quotation: When a mortgagee whether he be a prior mortgagee or a subsequent mortgagee, brings the mortgaged property to sale the auction purchaser acquires the two interests possessed by the mortgagee and the mortgagor respectively. The passage deserves quotation: When a mortgagee whether he be a prior mortgagee or a subsequent mortgagee, brings the mortgaged property to sale the auction purchaser acquires the two interests possessed by the mortgagee and the mortgagor respectively. A mortgage is according to S. 58 of the Transfer of Property Act, a transfer of an interest in immoveable property in favour of the mortgagee. A property has been described as a bundle of rights and when a person makes a mortgage, he parts with some of his rights in the property in favour of the mortgagee. To clearly understand the principle, let us take this illustration. Suppose P(sic)represents the property. If it is mortgaged to say 3 persons A, B and C, we may say that the interest P 1, out of the entire property P, has been parted with in favour of A, the interest P 2 has been patted with in favour of B, interest P3 has been parted with in favour of G and what remains with the mortgagor D is the interest, P4. In the case supposed P is = P1 + P2 + P3 + P4. It A the first mortgagee brings a suit for sale (I am speaking of simple mortgages only) and makes, as he ought to do, the mortgagor and all the subsequent mortgagees parties, the auction-purchaser acquires the interest of A, the interest of B, the interest of C, and the interest of the mortgagor; that is to say he acquires P1, P2, P3, P4 and therefore the entire property P. But if A brings a suit for sale against the mortgagor alone without impleading B and C, the auction-purchaser acquires the interest of the mortgagee, A which is P1, and the interest of the mortgagor which is P4 only. Thus the auction-purchaser is the owner of P1 and P4 alone. The interest of P 2 and P 3 have not vested in the auction-purchaser 18. It is clear, therefore, that the rights of the present plaintiff as the subsequent mortgagee were completely extinguished in the earlier litigation to which he was a party and in execution of whose decree that property was sold away. As such I am of opinion that the plaintiff's suit must fail. 19. The appeal is accordingly allowed. The decrees of the courts below are set aside and the plaintiff's suit is dismissed with costs 20. As such I am of opinion that the plaintiff's suit must fail. 19. The appeal is accordingly allowed. The decrees of the courts below are set aside and the plaintiff's suit is dismissed with costs 20. Leave to appeal to a Special Bench is granted