SARJOO PROSAD C. J. : This appeal raises an interesting question of law and my brother Deka J., who heard it "in the first in­stance, therefore, considered it desirable that the ap­peal should be decided by a Division Bench. The question is whether the suit for redemption and re­covery of possession out of which this appeal arises is maintainable or whether it is hit by O. XXXIV, R. 1, Civil Procedure Code, as held by the learned Judge below. (2) The material facts are beyond dispute. The lands in suit originally belonged to two brothers, Radhakrishna Pande (Defendant No>. 3) and Baidya-nath Pande, who is since dead. Both these brothers mortgaged certain lands including the suit lands to one Gopal Chandra Naha (Defendant No. 4), the father of the plaintiffs, under a registered mortgage deed dated 11-2-1920. This was a simple mortgage. '(Nearly three years later, on 21-4-1923, the brothers aforesaid executed another mortgage deed in respect of these lands in favour of Atan Senajit Raj Kumar (Defendant No. 1) and Rabichandrajit Rajkumar, father of Defendant No. 2. This was a mortgage with possession and the mortgagors promised to pay the mortgage amount within three years from the due date. The Defendant No. 4, who was the prior mort­gagee, sued on the foot of his mortgage bond, but he omitted to implead in the suit the subsequent mortgagees, the Defendant No. 1 and the father of Defendant No. 2. On 14-12-1932, a preliminary de­cree was passed in the suit and the decree was made final on 7-12-1936. The decree-holder put this de­cree in execution and the dues not having been t>aid during the period of grace, purchased the lands in satisfaction of his decree and obtained delivery of possession through Court. The Defendants Nos. 1 and' 2, who were dispossessed, applied under O. XXI, R. 100, Civil Procedure Code, to the executing Court for being restored to possession on the ground that they were not bound by the decree or the sale in (pursuance thereof; and as such, their possession could not be affected in execution of a decree on the basis of the earlier mortgage. The objection prevailed and these Defendants were restored to possession on 30-3-1940. The objection prevailed and these Defendants were restored to possession on 30-3-1940. On 25-4-1941, the Defendant gifted these lands to his sons, the present Plaintiffs and the Plaintiffs have now in­stituted this suit for recovery of possession of the pro­perty or any other appropriate relief from Defen­dants 1 and 2. They claim that the latter mortgagees being in possession for more than 12 years from the 'date of the mortgage, their mortgage had been ex­tinguished by virtue of the provisions of S. 6 of the .Assam Money-lenders Act of 1941. (3) The Defendants 1 and 2 contested the suit mainly on the ground that it was barred by limita­tion; that these Defendants not having been made parties to the earlier suit in which the Defendant No. 4 obtained his mortgage decree, the claim of the Plaintiffs to enforce their mortgage against these De­fendants was barred by limitation and that these Defendants were entitled to continue in possession unaffected by any decree passed in the previous suit. They repudiated the claim of the plaintiffs either to redeem their own mortgage or to recover possession. They, however, did not make any offer to redeem the earlier mortgage of the plaintiffs. (4) The suit itself was filed on 22-5-1947 and as such the delay in the disposal of the suit demands explanation. It appears to have had a lingering career. In the first instance, the Munsiff, who tried it, dismissed it on the ground that it was barred by limitation, accepting the Defendants' plea. On appeal, the decree was affirmed by the lower appellate Court, but on second appeal to this Court, the decision of the Courts below was set aside and the suit was remanded on 6-6-1951 for disposal on meri's after decision of the other issues involved. When the mat­ter went back to the District Judge, he instead of deciding the matter himself, remanded it to the trial Court for decision. It appears, however, that no further evidence was adduced in this case nor any fresh issues raised except a slight amendment in issue No. 6, which is one of the main issues in the case regarding the Plaintiffs' right to redeem the Defendants. The learned Munsiff found in favour of the Plaintiffs and decreed the suit for redemption on payment of the mortgage money payable to the Defendants 1 and 2; but. The learned Munsiff found in favour of the Plaintiffs and decreed the suit for redemption on payment of the mortgage money payable to the Defendants 1 and 2; but. On appeal, the Court below has dismissed the suit. The Court below has held on the only point which was argued before it, that the suit was not maintainable under O. XXXIV, R. 1 of the Civil Procedure Code. (5) The learned counsel for the appellants has contended that the decision is clearly wrong. It is urged that the present suit being one for redemp­tion and, recovery of possession, is not barred by O. XXXIV, R. 1 of the Civil Procedure Code and the decision of the Court below to the contrary is mis­conceived. Therefore, the real point to determine is whether the failure of the defendant No. 4 to im-plead the subsequent mortgagees in the suit on the basis of his prior mortgage has rendered the decree obtained in that suit nugatory so as to prevent the plaintiffs from claiming even the right of the mort­gagors to redeem the mortgage in favour of the De­fendants, by virtue of their purchase of the mortga­gors' interest in the property. Order XXXIV, R. 1 of the Civil Procedure Code requires that all persons having an interest in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mort­gage. There is no doubt that a subsequent mortgagee has an interest in the mortgage-security and in the right of redemption. Therefore, in a suit on a prior mortgage bond the law required that the puisne mortgagee should be impleaded as a party so as to enable the puisne encumbrancer to protect his inte­rest in the mortgage-security. If that is not done, the decree obtained in the suit will not be binding on the subsequent mortgagee and any purchase made by the auction purchaser at the auction sale in execution of such a decree, be he the Prior mortgagee himself or a third party, will not affect the interest of the subsequent mort­gagee. The latter, if he is a mortgagee in pos­session, cannot be dispossessed by the auc­tion purchaser or even compelled to redeem if he docs not desire to do so. The latter, if he is a mortgagee in pos­session, cannot be dispossessed by the auc­tion purchaser or even compelled to redeem if he docs not desire to do so. The remedy in that case for the auction purchaser may be not to sue for re­covery of possession, but to sue to enforce his mort­gage as against the subsequent mortgagee provided the right to sue is not already barred by limitation. The position will be the same where prior to the institution of a suit on a mortgage bond, the property mortgaged has- been transferred by the mortgagor to some other person, who in his own rights, either in whole or in part, acquires the equity of redemption; in such a case, if the transferee is not arrayed as a party to the suit on the mortgage bond, the decree does not bind the transferee and the auction purchaser in execution of such a decree does not purchase the property so as to extinguish the right of redemption, but buys it subject to the rights of the transferee, who was not a party to the suit. In other words, what he buys is not the interest in the property as it was at the date of the mortgage in which the decree in question was passed, but at the date of the suit. Therefore, as against the sub­sequent transferees the auction purchaser may have to enforce his 'mortgage afresh and if in the mean­time, his claim to enforce it is barred, he may have no other remedy against them. This is in keeping with the principle "redeem up" and "foreclose down". There is, however, some distinction between a case where the mortgagor's interest in the mortgaged pro­perty has been wholly or partly acquired by a sub­sequent transferee by sale and where the transfer of that interest is merely in the nature of a subse­quent mortgage. In the former case, if the transferee is not im- j pleaded as a party to the mortgage suit, the auction purchaser in execution of a decree obtained in that suit does not acquire the interest of the mortgagor in whole or in part, as the case may be, because that interest is not represented in the suit. In the former case, if the transferee is not im- j pleaded as a party to the mortgage suit, the auction purchaser in execution of a decree obtained in that suit does not acquire the interest of the mortgagor in whole or in part, as the case may be, because that interest is not represented in the suit. All that he acquires is the interest of the mortgagee and has to be content with that interest as against all those who have been left, out of the suit. He is more or less, merely in the position of an assignee of the mort­gage bond in suit and if he can still enforce it as • against the transferees, well and good; otherwise, his purchase is of no avail as against the interest of the subsequent transferee. Where, however, the subsequent transferee is merely a mortgagee and such a mortgagee is left out of the action on the earlier mortgage bond, the auc­tion purchaser in execution of a decree obtained on the foot of such a bond acquires in full not only the interest of the prior mortgagee, but also the interest of the mortgagor. He thus, by virtue of his auction purchase, acquires a double capacity. As a purchaser of the interest of the mortgagor, he acquires the right to redeem the subsequent mortgagee or in ease of an action at the instance of the subsequent mort­gagee, to use his purchase of the interest of the prior encumbrancer as a "shield" to protect his own inte­rest, even though his right to sue on the basis of the earlier mortgage may have been extinguished by the law of limitation. The so-called "shield" may be available to him only where the subsequent mortgagee sues on his bond and wants to dispossess him; otherwise, if the subsequent mortgagee is in possession of the pro­perty, the "shield" on the basis of the earlier mort­gage may not be available at all; and the only re­medy which the auction purchaser will then have is to sue for redemption of the subsequent mortgage, a light which was available to the mortgagor whose interest has since passed on to him by his auction purchase. (6) Discussion at the Bar shows that there is a good deal of conflict of judicial opinion on the points stated above not only among the various High Courts in India, but also amongst the Judges of the same High Court. I have, therefore, tried to formulate the above principles as clearly as I could. If these prin­ciples are kept in view, it may be perhaps possible to reconcile the apparent conflict and at any rate to find some justifiable basis for the decisions given. I would, therefore, seek to avoid delving into the facts of the numerous cases cited at the Bar, because judi­cial contribution on these points, notwithstanding the conflict and perhaps On account of it, is already vo­luminous. I will content myself with reference to a few of those authorities which bear out the princi­ples which I have indicated. (7) The pronouncement of the Judicial Com­mittee in Mt. Sukhi v. Ghulam Safdar Khan, 48 Ind App 465: AIR 1922 PC 11, furnishes an important judicial landmark on the subject. Lord Dunedin there observed that if the puisne mortgagee brings a suit on his mortgage, the auction purchaser in execution of the prior mortgage decree, can use the prior mortgage right as a shield, and claim payment of the amount due under the prior mortgage decree, where the puisne mortgagee seeks a decree for sale in his favour. In that case, the plaintiff was the puisne mortgagee seeking to enforce her mortgage, the prior mortgagee in his suit having failed to make her a party. It was laid down that in the circumstances it was 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. 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 and the same person by the decree of the Court. 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 and the same person by the decree of the Court. It is to be noticed that although on the facts of the case, the suit on the prior mortgage might have been barred, if the prior mortgagee had sought to enforce it against the subsequent mortgagee, yet their Lord­ships held that the auction purchaser in execution of the prior mortgage decree had the right to set up his purchase under the prior mortgage as a shield to protect his interest. The analogy of the shield and sword is very expressive. In other words, it follows that if the prior mortgagee or the auction purchaser in execution of the prior mortgage decree sought to enforce his mortgage as against the subsequent mort­gagee and compel him to redeem, the suit could not be entertained owing to the bar of limitation. Nevertheless, for the purpose of protecting his own interest, the auction purchaser was allowed to utilise his prior purchase in execution of the prior mortgage decree as a shield against the subsequent mortgagee. The auction purchaser could not attack the interest of the subsequent mortgagee, but could defend his own. The point of limitation was not ex­pressly argued, but on the facts the ratio decidendi appears to be quite clear. It, therefore, follows that the auction purchaser of the prior mortgage decree, who enjoyed the double capacity of purchasing the mortgagor's interest as well could also redeem the subsequent mortgage. The principle has been simi­larly elucidated by Mukherjea, J. as he then was, in the decision in Bidhuranjan Sarkar v. Soleman Pra-manik, 45 Cal WN 883: (AIR 1941 Cal 613). His Lordship there answered the question posed thus. "It seems to me that whether the suit should be one for possession or for enforcement of the secu­rity itself would depend upon the fact as to whether the mortgagor was or was not a party to the mort­gage suit. His Lordship there answered the question posed thus. "It seems to me that whether the suit should be one for possession or for enforcement of the secu­rity itself would depend upon the fact as to whether the mortgagor was or was not a party to the mort­gage suit. If the mortgagor himself or the person in whom the mortgagor's rights were vested was im-pleaded as a party defendant but some person inte­rested in the equity of redemption, as for example, a puisne mortgagee, was left out, then the purchaser acquires not only the rights of the mortgagee plain­tiff but the interest of the mortgagor as well, and he can sue for possession as purchaser of the mort­gagor's rights subject to his first mortgagee rights being redeemed by the puisne mortgagee, and he in turn being allowed to redeem the latter in his capa­city as a mortgagor. But when the equity of redemption is entirely unrepresented in th@ mortgage suit and the holder of the equity of redemption is not at all made a party to such suit, the position of the purchaser can­not be higher than that of the assignee of the mort­gagee's rights. As a purchaser of the mortgagee's rights he cannot sue for possession, and his only re­medy would be to institute a suit for enforcement of the mortgage bond." In that case, the person in whom the mortgagor's rights were vested had not been impleaded as a party to the suit. Therefore, the auction purchaser in exe­cution of that decree did not purchase the mortga­gor's rights to redeem. He became merely an assignee of the mortgagee's interests and his only remedy as such was to enforce the mortgage against the person in possession. When the suit upon the mortgage was barred by limitation, the mortgagee-purchaser could not have his suit for possession converted into one for enforcement of the mortgage bond. Nevertheless, the decision recognises that the auction purchaser in execution of a prior mortgage decree to which the subsequent mortgagee was not a party, but the equity of redemption was otherwise properly represented could exercise the rights of the mortgagor, which he acquired by the purchase; which is the same thing as saying that he could redeem the subsequent mortgagee. Nevertheless, the decision recognises that the auction purchaser in execution of a prior mortgage decree to which the subsequent mortgagee was not a party, but the equity of redemption was otherwise properly represented could exercise the rights of the mortgagor, which he acquired by the purchase; which is the same thing as saying that he could redeem the subsequent mortgagee. As to who should have the preferential right of redemption as bet­ween the said purchaser and the subsequent mort­gagee is a matter to which I shall advert later. The other case to which reference need be made is the decision in Abdul Gafoor v. Sagun ILR 27 Pat 526-( AIR 1952 Pat 321 ), where the learned Judges also held that an auction-purchaser in execution of a decree obtained on the foot of a prior mortgage with­out impleading the subsequent mortgagee acquires at least the rights of the mortgagor, who was a party to his action. He could thus exercise the right to redeem the puisne mortgagee; because, there can be no doubt that the auction-purchaser in execution of the de­cree based on the prior mortgage occupies the double capacity of a first mortgagee as well as the owner of the equity of redemption, and while in his first capacity he can use the prior mortgage as a shield against the puisne mortgagee, in his second capacity he can redeem all subsequent mortgages. So far as these principles go, I find myself in respectful agree­ment with these decisions, though, I would prefer to make a few observations of my own with refer­ence to the right of redemption exercisable by the auction-purchaser vis-a-vis the subsequent mortgagee. These decisions support the view that the suit for redemption is maintainable. (8) On behalf of the respondents, it has been contended that the period of limitation to enforce the right on the prior mortgage having expired, the plaintiff auction-purchaser in this suit has no remedy left. Reliance has been placed upon various decisions to which I do not propose to refer in detail except to two of the latest. (8) On behalf of the respondents, it has been contended that the period of limitation to enforce the right on the prior mortgage having expired, the plaintiff auction-purchaser in this suit has no remedy left. Reliance has been placed upon various decisions to which I do not propose to refer in detail except to two of the latest. The above proposition advanced by the respondents prima facie militates, as I have shown, against the view which the Judicial Com­mittee took in Musamat Sukhi's case, AIR 1922 PC 2 I. The decision in Dattatraya Laxman v. Daulata Ilari Chavan, AIR 1950 Bom 136 , cited by the learn­ed counsel for the respondents does not bear out the contention. In that case, it was simply held that the crite­rion in deciding the question as to what passed at au auction sale in execution of a mortgage decree was whether all the persons who were interested in the equity of redemption were parties to the proceedings; in case they were so parties to the proceedings, then their interest would pass to the auction purchaser. If on the other hand, they were not parties to the proceedings, then, in that case, the interest of per­sons, who were not joined but who ought to have been joined did not pass; they would stand in exact­ly the same position in which they were before the suit upon the mortgage was filed; and where the question was one of possession and who was en­titled to possession, it would be necessary for the party who claims possession to show that he was en­titled to it as a representative of one of the persons whose interest has passed to him by virtue of the sale held in execution of the mortgage decree. The purchaser in execution of the prior mort­gage decree to which the subsequent usufructuary mortgagee was not a party was held not to be en­titled to dispossess the subsequent mortgagee, be­cause by his purchase of the mortgagor's interest he acquired no such right. According to the learned Judges, the only remedy of the auction purchaser was to enforce the prior mortgage, otherwise his purchase would be subject to the subsequent mortgage. The decision in Bipra Charan Sarkar v. Sm. Rupeswari Das, AIR 1953 Cal 682 , illustrates the same point of view. According to the learned Judges, the only remedy of the auction purchaser was to enforce the prior mortgage, otherwise his purchase would be subject to the subsequent mortgage. The decision in Bipra Charan Sarkar v. Sm. Rupeswari Das, AIR 1953 Cal 682 , illustrates the same point of view. In both these cases, the auction purchaser in execution of the prior mortgage decree to which the subsequent mortgagee in possession, or the transferee of the equity of redemption was not a party, had sued to recover possession from the mortgagee or from the subsequent transferee and such a suit was held to be not maintainable. That would be obvious­ly so, because the purchase gave him no such right But none of these cases could be pressed in aid of the contention that such an auction purchaser could not sue for redemption of the subsequent mortgage or protect his own interest by virtue of his auction purchase in execution of the prior mortgage decree, in case the subsequent mortgage was sought to be enforced against him; nor do they dispute the position that the auction purchaser, who has also ac­quirer the interest of the mortgagor in the right of redemption was entitled to exercise this right, as held by the Judicial Committee. For these reasons, it must be held that the learned Additional District Judge was not justified in holding that the present suit for redemption and recovery of possession insti­tuted by the Plaintiffs was barred under O. XXXIV, R. 1 of the Civil Procedure Code. (9) It is next contended by the respondents that at any rate, they should be given the right to redeem the prior mortgage encumbrance on payment of the amount decreed under the first mortgage. They con­tend that owing to the failure of the Defendant No, 4 to implead the subsequent mortgagees as a party to the suit, these mortgagees should be placed in. the same position which they occupied before the institution of the suit. In other words, it is urged that their right to redeem the prior encumbrance should not be defeated by the omission of the prior mortgagee to implead them in the suit filed by him. the same position which they occupied before the institution of the suit. In other words, it is urged that their right to redeem the prior encumbrance should not be defeated by the omission of the prior mortgagee to implead them in the suit filed by him. On the contrary, it has been contended by the learned Advocate-General for the Plaintiffs that as the pur­chaser of the right of redemption which was vested in t e mortgagor, the Plaintiff alone is entitled to exercise the right. He contends that although the subsequent mort­gagee may have the right to redeem the prior en­cumbrance, yet eventually as a purchaser of the right of redemption at the auction sale, the Plaintiffs will be again entitled to redeem the subsequent en­cumbrance. The net result, according to the learned counsel, is that the Plaintiffs alone can have the ulti­mate right to redeem. The contention is supported by various decisions in addition to the two Calcutta and Patna cases cited above. Reliance has also been placed by the learned counsel for the appellants upon the passage in Ghosh's Law of Mortgage, wherein the eminent jurist observes that though the purchaser, under the first decree was entitled to the outstanding interests- in the mortgage, as the puisne mortgagee was not a party to it, the latter had the right to pay all the amount due and upon such payment, he would be the holder of the first charge with power to rea­lise, if the first mortgagee in his character of an owner of the equity of redemption did not choose to redeem. This is a phase of the problem which, I must admit, leaves me somewhat unconvinced about the unexceptionable character of the views expressed in those decisions. Broadly speaking, the contention may be correct. But then it is to be remembered that if full effect is given to this contention, O. XXXIV, R. 1 would be rendered almost nugatory; and a prior mortgagee by the simple device of not impleading the subsequent mortgagee as a party to the suit on his mortgage may proceed to obtain a decree as against his mortgagor and other persons interested; and thereby in his capacity of an auction purchaser of the mortgagor's interest proceed to redeem the subsequent mortgagee and thus in its ultimate ana­lysis deprive the subsequent mortgagee of his right of redemption. If this view prevails, it would easily encourage dishonest mortgagees to defeat the interest of sub­sequent mortgagees and shut out their right of re­demption by not impleading them as parties to the suit at all on the basis of their mortgage. This means a tacit approval in permitting the prior encumbrancer to take advantage of his own wrong. I find it difficult to lend my judicial support to such an unfair propo­sition. As at present advised, therefore, I am not prepared to adopt the view that the auction pur­chaser in execution of a prior mortgage decree to which the subsequent mortgagee was not a party should in any case have the preferential right to re­deem the subsequent mortgagee, even though the subsequent mortgagee might want to exercise the right of redemption. It may be that the auction purchaser may not be able to compel the subsequent mortgagee to re­deem, because the right of redemption is a right and not a liability; but if the subsequent mortgagee chooses to exercise this right, I do not see why he should be deprived of it, when he could have easily done so if he had been made a party to the suit. Mr. Lahiri submits that the short answer to the conten­tion is that if the property had been privately sold to the prior mortgagee or to any third party, they would have exercised the right of redemption; that being so, there is no reason why this right of redemp­tion should not be given to the auction purchaser, be he the mortgagee himself or any third party vis-a-vis the subsequent mortgagee. The position of the auction purchaser, says the learned counsel, should not be worse off than that of the person, who purchases privately. There is of course strength in this submission; but, in my opi­nion, in working out the equities of the parties in such a case, the analogy of a person purchasing at a private sale should not be taken too far. It is com­mon knowledge that in auction sales the price paid is usually much less than the market price and the sale is brought about under stress of circumstances, very often, much, against the wishes of the parties- inte­rested. It is com­mon knowledge that in auction sales the price paid is usually much less than the market price and the sale is brought about under stress of circumstances, very often, much, against the wishes of the parties- inte­rested. Besides, two important principles cannot be lost sight of : (1) that owing to the failure of the prior mortgagee to implead the subsequent mort­gagee as a party to the suit, on the prior mortgage, the latter should be held to occupy the position which he had prior to the institution of the suit; in other words, that his right of redemption remained unaffected; and (2) that the prior encumbrancer in equity could not be allowed to take any advantage of his own wrong. I am, therefore, inclined to think that in such circumstances, if the subsequent mortgagee sought to redeem the prior encumbrance, he should have the preferential right to do so. The point, however, strictly speaking is not available to the Defendants in this case. At no stage the Defendants offered to re­deem the Plaintiffs' prior encumbrance under the de­cree. On the contrary, they were simply content to challenge the Plaintiffs' right to redeem and to re­cover possession on the ground that their right, if any, was barred under O. XXXIV, R. 1 of the Civil Procedure Code. The trial Court eventually found in favour of the Plaintiffs and decreed the suit, but the appellate Court held against them. In the circum­stances, we do not feel that we would be justified in conceding any such right of redemption to the Defendants at this stage. (10) The appeal must, therefore, be allowed, the decree under appeal must be set aside and that of the trial Court must be restored; but in the circum­stances, we think that the parties should bear their own costs of the litigation throughout. (11) H. DEKA J. : I fully agree. Appeal allowed.