Judgment :- 1. The suit was to enforce a simple mortgage, Ext. P1 dated the 31st January, 1944, executed by the first defendant in favour of the plaintiff, charging two items of properties in suit and to realise with interest the sum of Rs. 293/-, which the plaintiff had paid in discharge of the decree in O.S. 466 of 1953 charged on item 2. On the 4th September, 1947, the second defendant, the Travancore Forward Bank Ltd., which is now amalgamated with the second respondent, the State Bank of Travancore, took a simple mortgage of item 2 from the first defendant, afterwards obtained the decree thereon in O.S. 94 of 1124, purchased that item, in execution and went into possession under Ext. D2, delivery list dated the 5th July, 1956. On the 3rd December 1948, the 3rd defendant, the South Indian National Bank Ltd., which was later amalgamated with the Bank of New India Ltd., which in its turn is amalgamated with the State Bank of Travancore Ltd., took a simple mortgage of both items of properties and obtained the decree Ext. D.8 in O.S. 104 of 1124, On the 16th September, 1955, the plaintiff took a sale deed Ext. D1, from the first defendant for both items in purported settlement of Ext. P1, with also a provision to discharge the decree in O.S. 466 of 1953. The plaintiff accordingly paid Rs. 293/- in discharge thereof, under Ext. P2 receipt of the same date. In the plaint in the present suit, the plaintiff disclaimed the benefit of the purchase by Ext. D1, in view of the court purchase of item 2 by the second defendant, but relied upon it as an acknowledgment of Ext. P1 to save limitation for enforcing it. 2. Defendants 2 and 3 contended chiefly, that by the acceptance of Ext. D1, the debt under Ext. P.1 became extinguished and that the suit is barred by limitation, the acknowledgment in Ext. D1 being ineffectual. There was a claim by the 7th defendant to a plot of 16 cents in item 1. The Munsiff held in favour of the plaintiff and gave him a decree, for the realisation under Ext. P.1, of "Rs. P.1 became extinguished and that the suit is barred by limitation, the acknowledgment in Ext. D1 being ineffectual. There was a claim by the 7th defendant to a plot of 16 cents in item 1. The Munsiff held in favour of the plaintiff and gave him a decree, for the realisation under Ext. P.1, of "Rs. 2719/- with interest at 6% per annum from the date of suit and costs from plaint schedule items 1 and 2 but excepting 16 cents from item 1 which belongs to the 7th defendant" and also for "the realisation of Rs. 319.25, the amount claimed in the B valuation of the plaint with interest on Rs. 293 at 6% per annum from the date of suit by sale of plaint item 2 as a first charge on the same." On appeal by defendants 2 & 3, the Additional District judge accepted the contentions raised by them and dismissed the suit. This second appeal is by the plaintiff. 3. The first question to decide is, whether the plea of extinguishment of Ext. P1 by reason of Ext. D1 is valid. Ext. D1 was executed after the Transfer of Property Act came into force in the concerned area. S.101 of that Act enacts: "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 or owner, as the case may be, without thereby causing the mortgage or charge to be merged as between himself and 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." It seems to me, that under this Section, a prior mortgagee does not necessarily give up his right under it as against a subsequent mortgagee, simply by a purchase by him of the rights of the mortgagor in consideration of his mortgage, but may use it against the subsequent mortgagee. The Additional District judge relied on Lachhman Prasad v. Lachmeshwar Prasad (A.I.R.1922 Allahabad 76) and Kedar Nath Goenka v. Bhagwat Prasad Kumar (A.I.R.1936 Patna 404) in support of his view, that there has been a merger of Ext. P.1 in Ext. D1. The Additional District judge relied on Lachhman Prasad v. Lachmeshwar Prasad (A.I.R.1922 Allahabad 76) and Kedar Nath Goenka v. Bhagwat Prasad Kumar (A.I.R.1936 Patna 404) in support of his view, that there has been a merger of Ext. P.1 in Ext. D1. But that view has been dissented from in Bohra Bhup Singh v. Sakha Ram (A.I.R.1945 Allahabad 158). In Mt. Bibi Bashirunnissa v. Habib Ahmad (A.I.R.1960 Patna 264) it was held, that according to S.101 of the Transfer of Property Act as it stands, the existence of a subsequent encumbrance prevents the merger of the right of the mortgagor in the mortgagee. The plaintiff having relinquished or renounced the benefit of Ext. D.1, because one item of property was lost to him by the court purchase, it is a principle, as laid down in Dasari Polayya Dora v. Chaprasi Anantha Patro (A.I.R. 1936 Madras 61), that where the second transaction replacing a former mortgage is frustrated wholly or partially, the mortgagee can fall back on the earlier mortgage. I am therefore of the view, that Ext. D1 cannot be held to bar the plaintiff from seeking to enforce Ext. P.1, as against defendants 2 and 3. 4. Though the benefit of Ext. D.1 has been renounced, a statement in it which fulfils the requirements of a valid acknowledgment, can be relied on under S.19 of the Indian Limitation Act by the plaintiff. There is in Ext. D1, such a statement signed by the first defendant admitting the liability under Ext. P.1, which may be held to constitute a valid acknowledgment against him and the interest which he had in the properties at the time. But its operation against defendants 2 and 3, which is a very different matter, has to be adjudged on the relevant words of S.19, which are "signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability". The first mortgage in favour of the 3rd defendant was on the 31st July, 1947, which was renewed by a later mortgage dated the 3rd December, 1948, both of which are anterior to Ext. Dl; similarly, the second defendant's mortgage too is anterior. Though defendants 2 & 3 are not parties to the acknowledgment in Ext. The first mortgage in favour of the 3rd defendant was on the 31st July, 1947, which was renewed by a later mortgage dated the 3rd December, 1948, both of which are anterior to Ext. Dl; similarly, the second defendant's mortgage too is anterior. Though defendants 2 & 3 are not parties to the acknowledgment in Ext. D1, it was contended, that the acknowledgment by the first defendant through whom they derived title is sufficient to bind their interests. It has been ruled by a Full Bench of the Travancore-Cochin Court in Pappu Pillai Kunchi Pillai v. Sunny Rebella (1953 K.L.T. 144) that an acknowledgment of a mortgage made by the mortgagor after he has parted with his rights completely, is no acknowledgment against his transferee. This has been ruled also in Thomman Chacko v. Narayanan Thuppan Nambooripad (1954 KLT.16). But no decision of this Court has been brought to my notice, which has considered the effect of an acknowledgment by the mortgagor, where he has parted with his rights only partially, as by mortgaging them prior to such acknowledgment. The leading case on this point, is Surjiram Marwari v. Harhardeo Persad (1 Calcutta Law Journal 337), in which, after pointing out the inequity arising from relying upon an acknowledgment made behind the back of another after his interests had come into being, the Calcutta High Court relied on the analogy of the words used in S.13 of the Indian Civil Procedure Code then in force, corresponding to S.11 of the present Civil Procedure Code. The relevant words in S.11 are, "in a former suit between the same parties, or between parties under whom they or any of them claim," on the construction of which, on the point under discussion, there is unanimity of judicial opinion. The court held, that the corresponding words in S.19 of the Limitation Act also must receive a similar construction, that is to say, that a mortgagee whose mortgage had come into existence prior to the acknowledgment is not a party, who, so far as such mortgage was concerned, derived title from the party who made the acknowledgment. This reasoning commended itself to the Privy Council in Bank of Upper India Ltd. v. Robert Hercules Skinner (AIR. This reasoning commended itself to the Privy Council in Bank of Upper India Ltd. v. Robert Hercules Skinner (AIR. 1942 P. C. 67), which supported it by a further analogy drawn from the effect of an admission on a party, who derived his interest from another prior to the making of the admission. Although in the case before the Privy Council, the mortgagor had, before making the acknowledgment, transferred the entirety of his interests, the High Courts have held in later cases, that the Privy Council had set the seal of approval on the reasoning in the Calcutta case which applies to the present case. Seth Radhakishan Ramlal Palliwal v. Babu Hagarilal (AIR. 1944 Nagpur 163) decided by a Full Bench and Manohar Janardhan v. Yado Isinath (AIR. 1952 Nagpur 404) decided by a Single Judge of the Nagpur High Court, Munna Lal v. Chunni Lal (AIR. 1945 Allahabad 239) decided by a Full Bench, and Ram Narain Singh v. Hawab Singh (AIR. 1947 Allahabad 214) decided by a Division Bench, of the Allahabad High Court, Naranappa Naicker v. Ramalingam Pillai (AIR. 1950 Madras 553) and Dhonavakonda Gopalarao v. Thatha Venkatadri (AIR. 1957 Andhra Pradesh 19) are some of those cases. I therefore hold, both on principle and authority, that an acknowledgment by a mortgagor, while it binds interests created by him subsequently, cannot bind an interest created prior to it. 5. So the acknowledgment by Ext. D1, cannot affect the interests of defendants 2 and 3 under the respective mortgages in their favour. In this view, it has become necessary to ascertain the date on which the second defendant purchased the equity of redemption in execution of O.S. 94 of 1124. The certified copy of the sale certificate produced before me shows, that the purchase was on the 11th November 1955, which is subsequent to the date of Ext. D1. An uncertified copy of the proclamation schedule in O.S. 94 of 1124 was also filed along with it, as an acknowledgment of Ext. P.1 made by the second defendant. This was never relied upon till now and its admission at this stage would give rise to questions of fact, not excluding its genuineness, and I therefore decline to admit it. I admit only the copy of the sale certificate. P.1 made by the second defendant. This was never relied upon till now and its admission at this stage would give rise to questions of fact, not excluding its genuineness, and I therefore decline to admit it. I admit only the copy of the sale certificate. This introduces in the case a feature, which was not present in the decided cases referred to above or to which my attention was drawn. It seems to follow from what has been stated, that the first defendant, while he was incompetent to bind the mortgage interests of defendants 2 and 3 by a subsequent acknowledgment, was quite competent to bind his interest in the equity of redemption, which subsequently passed to the second defendant under the court purchase. The result is, that as against their mortgages, Ext. P1 must be regarded as barred by limitation, but as against the equity of redemption, Ext. P1 can be enforced; in other words, the mortgages have priority over Ext. P1, which can he enforced only subject to them. The plaintiff can enforce Ext. P1 against item 2, subject to the mortgage of the second defendant, which extends to the principal amount secured thereby and to interest thereon accrued till the date on which it came into possession. As against the third defendant, this complication has not so far arisen, because evidence has not been adduced as to what transpired in execution of Ext. D8, the decree obtained by it. It is sufficient to state, that as against the third defendant too the plaintiff may enforce Ext. P1, subject to the mortgage in its favour or the decree Ext. D8, provided in either case, that it is not barred by limitation. 6. The claim for reimbursement of the amount paid by the plaintiff for discharging the decree in O.S. 466 of 1953 was found by the first court to be true and to have priority. The Judge did not consider the claim, in the view he took on the other aspects of the case. There is no reason to doubt, that the plaintiff discharged O.S. 466 of 1953 or that the decree was upon a prior charge. That was the allegation in the plaint and the finding of the first court which was not specifically challenged in the appeal before the Judge. There is no reason to doubt, that the plaintiff discharged O.S. 466 of 1953 or that the decree was upon a prior charge. That was the allegation in the plaint and the finding of the first court which was not specifically challenged in the appeal before the Judge. It was contended before me, that the plaintiff cannot claim to be subrogated to the prior charge, as he had made the payment only in pursuance of his undertaking in Ext. D1. However this be, as the plaintiff has relinquished the benefit of Ext. D1, the plaintiff may be allowed the benefit of the prior charge which he has discharged. Where the sale deed turns out to be invalid or ineffectual, reason and equity alike demand, that the vendee must be restored to the benefit of any prior charge which he may have discharged on the faith of the sale deed. Such a principle has been recognised, when the sale deed is found or is declared to be invalid after the discharge of prior encumbrances, and I do not see why it may not be extended to a case like the present. That upon the payment of the prior charge, a cause of action accrued to claim reimbursement, has been held in Vishnu Subramaniam Embranthiri v. Raman Raman Nomboothiri (1946 TLR. 891) and so the claim in this respect is within time. The amount of the prior charge has to be ascertained either from Ext. P. 2 or Ext. D2. As between these, the statement of the amount of the prior charge in Ext. D2 has greater evidentiary value as an admission by the second defendant, than Ext. P. 2 which may be regarded as a self-serving document. The new document Ext. P. 3 also supports Ext. D2 and shows the decree amount in O.S. 466 of 1953 to be Rs. 250/-. So the amount which can be allowed to be recovered by the plaintiff on this account is Rs. 250/- with future interest thereon at 6 per cent per annum from the date of this suit, as a first charge on item 2. 7. Sixteen cents in item 1 had been excluded from liability upon the contention of the 7th defendant, and the judge has allowed a proportionate abatement in the principal amount secured by Ext. P1, which may roughly be taken to be Rs. 7. Sixteen cents in item 1 had been excluded from liability upon the contention of the 7th defendant, and the judge has allowed a proportionate abatement in the principal amount secured by Ext. P1, which may roughly be taken to be Rs. 453/- on the basis of area, thereby leaving a balance of Rs. 2,266/- as the principal amount to be realised under Ext. P1. On the provisions of Ext. P1, item 1 is primarily liable and item 2 only secondarily, if the full amount is not realised. 8. Having regard to the above, I pass a decree in the following terms. The plaintiff will realise Rs. 2,266/-with interest at 6% per annum from the date of suit, from item 1 excluding 16 cents claimed by the 7th defendant, but subject to the rights of the 3rd defendant over items 1 and 2, under the mortgage in its favour or Ext. D.8 decree at its option, provided in either case, the mortgage or the decree is not barred by limitation. If the plaintiff is not able to realise the full amount as aforesaid from item 1 excluding 16 cents, he may realise the balance from item 2, but subject to the following. The plaintiff may recover as a prior charge on item 2, the sum of Rs. 250/- and interest thereon at 6 percent per annum from the date of suit. He may also realise from item 2, the balance of the amount remaining unrealised from item 1, but subject to the right of the second defendant under the mortgage in its favour, for the principal amount secured by the mortgage and interest thereon at 6 percent per annum from the date of the mortgage till the 5th July, 1956, the date of Ext. D2, and also subject to the right of the 3rd defendant in item 2 under the mortgage or decree in its favour as stated above. The parties were directed by the judge to bear their costs in the two courts below; that direction will stand. In this Court also, they shall bear their costs. The memorandum of cross-objections is dismissed, but without costs.