Judgment.- These three appeals are connected and may be dealt with together Four suits Original Suit No. 665 of 1124 (M.E.) Original Suit No. 375 of 1950, Original Suit No. 297 of 1124 (M.E.) and Original Suit No. 703 of 1950 on the file of the Principal District Munsif, Kuzhithurai, relate to portions of S. No. 63-A, measuring 2 acres 94 cents in Arudesom Pakudi. The trial Court after taking evidence disposed of all the four suits together. All the suits were taken on appeal to the District Court, Nagercoil, and the District Court decreed Original Suit No. 665 of 1124 and remanded the three other suits for retrial of the disputes of the parties in one consolidated suit and directed the plaintiff in Original Suit No. 297 of 1124 to implead all persons who claim title and possession under the various mortgages and Court sales in Original Suit Nos. 904 of 1127 and 320 of 1105. It directed the plaintiff in Original Suit No. 297 of 1124 to amend the plaint and convert the suit into one of title and for partition of his share in the property. It also directed that the rights of the plaintiffs in the other three suits should be decided in Original Suit No. 297 of 1124. Accordingly the plaint in Original Suit No. 297 of 1124 was amended as one for declaration of title partition and redemption of marayapattom. As the principal suit is Original Suit No. 297 of 1124 and the other suits relate to different portions of the same survey number, it is sufficient if Original Suit No. 297 of 1124 is dealt with. The plaintiff in Original Suit No. 297 of 1124 is the appellant in Second Appeal No. 1579 of 1961. The dispute in Original Suit No. 297 of 1124 relates to 1 acre 15 cents to the southern portion of S. No. 63-A a total extent of 2 acres 94 cents. The property originally belonged to two brothers Thammanathan Vaithiyan and Thammanathan Chevithian, Vaithiyan had three’ sons, Thammanathan, Gnanamuthu and Savarianandan. On the death of Vaithiyan these three sons succeeded to his estate. On 19th February, 1094 Chevithian executed on othi and Kuzhikkanom to his brother’s sons, Thammanathan Gnanamuthu and Savarianandan. Thus, the three sons were in possession of 1 acre 15 cents as jenmis and the other half as mortgagees. On the death of Vaithiyan these three sons succeeded to his estate. On 19th February, 1094 Chevithian executed on othi and Kuzhikkanom to his brother’s sons, Thammanathan Gnanamuthu and Savarianandan. Thus, the three sons were in possession of 1 acre 15 cents as jenmis and the other half as mortgagees. On 6th July, 1094, under Exhibit M, they executed a chitti hypothecation bond in favour of one Vedamanickom of their half share in the jenmom right and the other half share of the mortgage right of Chevithian. Vedamanickom filed a suit Original Suit No. 320 of 1100on the mortgage and obtained a decree Exhibit C. He assigned his rights to one Ummini Mathevan. Mathevan brought the property to sale in execution of the decree and purchased the same under Exhibit L on 31-9-1105. He got delivery through Court on 21-11-1105. He thus became entitled to the jenmom right over one half and the mortgage right over the remaining half. Mathevan assigned his right in favour of the plaintiff on 27-1-1121. Out of 1 acre 15 cents, 43 cents in the northern portion was acquired by the Government for a market and the remaining 72 cents in the southern portion is now in dispute. The plaintiff released the mortgage right in favour of his son, the sixth defendant retaining the jenmom right over one half of the property. Vaithian and Chevithian, the brothers, who originally owned the property jointly executed a mortgage in favour of Gnanapraksam, Savarimuthu and Thammanathan Meyyal of a portion of A schedule property being the B schedule property under Exhibit E on 13-11-1072. The othi right regarding the B schedule property subsequently devolved on one Subramania, and Subramania executed a marayam lease under Exhibit G on 8-12-1101 to one Thanu Pillai Subramania, the mortgagee, died and his wife, Krishnammal who got the mortgage right, released her right in favour of the plaintiff under Exhibit F on 21-9-1123. The first defendant took an assignment of the marayam lease from Thanu Pillai, and the second defendant is in possession of B schedule property. In the suit the plaintiff prayed for a declaration of his title and for partition by metes and bounds of his share in the A schedule property and also for redemption of the marayam lease in respect of the B schedule property. In the suit the plaintiff prayed for a declaration of his title and for partition by metes and bounds of his share in the A schedule property and also for redemption of the marayam lease in respect of the B schedule property. According to the directions in the order of remand he included the other defendants, who claimed rights in respect of the property. The case of the defendants is as follows:-The three sons of Vaithiyan, Thammanathan, Gnanamuthu and Savarianandan hypothecated their jenmom and mortgage rights to one Kaduvayan Kochan on 28-5-1039. Kochan filed a suit Original Suit No. 904 of 1107 on the hypothecation bond and obtained a decree, and in execution of that decree brought the entire righs of Vaithiyan’s sons to sale and the first defendant, purchased them. The first defendant, as auction-purchaser, took delivery under Exhibit II on 7-12-1123, and under Exhibit V he’ sold half of the B Schedule property to the second defendant on 29-11-1123. Thus defendants 1 and 2 claim that they are entitled to the property by purchase in execution of the decree in Original Suit No. 904 of 1107. There were some disputes about the identity of the properties which were sold in execution of the decree in Original Suit No. 320 of 1100 and Original Suit No. 904 of 1107. But the Courts below have found that the properties in both the suits are the same. Thus, the plaintiff claims the plaint property from an earlier auction-purchaser under an earlier mortgage, whereas defendants 1 and 2 claim under a later auction-purchaser under a later mortgage. Each of the mortgagees had not impleaded the other in his suit. Though on the date of Original Suit No. .320 of 1100, a second mortgage in favour of one Cochan was in existence, Cochan was not made a party. So also in the subsequent suit, Original Suit No. 904 of 1107 the first mortgagee was not impleaded. In both these suits only the mortgagor was made a party. The trial Court decreed the suit Original Suit No. 297 of 1124 declaring that the plaintiff was entitled to A schedule property and allowed him to redeem B Schedule property from the defendants. It also passed a preliminary decree for partition of one half of A Schedule property. In both these suits only the mortgagor was made a party. The trial Court decreed the suit Original Suit No. 297 of 1124 declaring that the plaintiff was entitled to A schedule property and allowed him to redeem B Schedule property from the defendants. It also passed a preliminary decree for partition of one half of A Schedule property. On appeal the lower appellate Court found that the plaintiff was not entitled to redeem the plaint property and that the sale in the second suit, Original Suit No. 904 of 1107, would prevail against the earlier sale in Original No. 320 of 1100, and that the defendants were entitled to redeem the plaint property. The question that arises in this Second Appeal is whether the auction-purchaser in execution of the sale by the first mortgagee held earlier is entitled to redeem the auction-purchaser in a sale by a puisne mortgagee held subsequently. In this connection it may also be stated that possession is admittedly with the defendants. The conflict is between the auction-purchasers in execution of sales by the prior and puisne mortgagees in which the puisne mortgagee and the prior mortgagee were not made parties. After the order of remand a comprehensive suit was filed in which all the interested parties were impleaded so that their equities may be worked out. The right of the puisne mortgagee to redeem a prior mortgagee and the right of a prior mortgagee to foreclose a puisne mortgagee is dealt with in section 91 (a) and section 94 of the Transfer of Property Act provides that any person who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same may institute a suit for redemption of the mortgaged property. The puisne mortgagee is an assignee of the equity of redemption and is, therefore, entitled to redeem the prior mortgagee. Section 94 of the Transfer of Property Act provides 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, that is, a prior mortgagee has the same rights against the subsequent mortgagees, as he has against a mortgagor. A prior mortgagee can forclose a puisne mortgagee. The effect of these two sections is expressed by the familiar rule redeem up, foreclose down. A prior mortgagee can forclose a puisne mortgagee. The effect of these two sections is expressed by the familiar rule redeem up, foreclose down. When a prior mortgagee suing to enforce his mortgage does not make the puisne mortgagee a party to the suit and brings the property to sale, the auction-purchaser acquires the rights both of the mortgagee and, mortgagor, and as assignee of the mortgagor he may sue to redeem the puisne mortgagee. Under section 91 the puisne mortgagee as an assignee of the equity of redemption has a statutory right to redeem an earlier mortgage, the conflict is between the auction-purchaser in the first mortgagee’s sale to redeem as against the purchaser in a puisne mortgagee’s sale, where the puisne mortgagee has a right to redeem. The right between these two auction-purchasers to possession has been the subject-matter of several decisions of this Court. In Nagendran Chettiar v. Lakshmi Ammal1, a Full Bench of this Court had to consider as to which of the purchasers in Court auction sales by a prior mortgagee without impleading the puisne mortgagee and by a puisne mortgagee without impleading the prior mortgagee is entitled to possession. In the case cited an immovable property was mortgaged twice without possession. Each of the mortgagees filed seperate suits to realise the money due on his mortgage by sale making the mortgagor only party to the suit. In execution of the two sales two different persons became the purchasers. In determining, which of the two purchasers is entitled to possession, it was held that the priority of the date of sale carried with it a right to possession. One Lakshmi Ammal obtained a deed of’ maintenance from her deceased husband s brothers in in 1918 for payment of maintenance, lor which a house was charged, the owners of the house executed a second mortgage in 1922. As the maintenance was not paid till 1927 Lakshmi Ammal filed a suit without making the second mortgagee a party and obtained a decree. In execution of the decree she was appointed receiver for realisation of the profits of the house and for appropriating the same towards her decree. Subsequently she obtained possession. The second mortgagee filed a suit without making Lakshmi Ammal a party and obtained a decree and brought the property to sale. In execution of the decree she was appointed receiver for realisation of the profits of the house and for appropriating the same towards her decree. Subsequently she obtained possession. The second mortgagee filed a suit without making Lakshmi Ammal a party and obtained a decree and brought the property to sale. Nagendran Chettiar purchased the property and sought to obtain possession but was resisted by Lakshmi Ammal. The question before the Full Bench was which party was entitled to possession till the rights of parties were finally settled in a properly framed suit. The Court was concerned only with the right to possession and not with the priority of mortgages. The Full Bench after a full and exhaustive discussion on the case-law came to the conclusion that, no right to possession passed to Nagendran Chettiar because at the time of the sale the mortgagors had no right to possession, it having already passed to Lakshmi Ammal. It was made clear that they were not concerned with the rights of the parties but were only concerned merely with the right to possession. The Full Bench after referring to decisions in Venkatanarasammah v. Ramiah2, Dirgopal La1 v. Bolakee3, Chinnu Pillai v. Venkatasamy Chettiar4, Nanak Chand v. Teluckdya Koer5, expressed the view that the first purchaser was entitled to possession and that the priority of the mortgagees need not be considered. The right of redemption of the parties was not considered in these cases. The Full Bench also referred to the decision in Kutti Chettiar v. Subramania Chettiar6, where it was observed that the rights of the second mortgagee were unaffected by the sale held in execution of the prior decree to which he was not a party but those rights could not be enforced in a suit for possession but only in a suit for redemption or for sale. In Mulla Vittil Seethi v. Achuthan Nair7, a Full Bench of this Court held that a first mortgagee, who has purchased the mortgaged property in execution of a decree on his mortgage, is not entitled to decree for possession against a puisne mortgagee with possession who was not impleaded in the first mortgagee’s original suit, even subject to the puisne mortgagee’s right of redemption, that the puisne mortgagee’s rights at the date of his mortgage-whether to possession or to sale or foreclosure — remain altogether unaffected by the first mortgagee’s suit to which the former was no party and that he has also the right to redeem the prior mortgage, which is preserved in law in spite of the purchase by the prior mortgagee of the equity of redemption. It was further held that redemption is a right which the puisne mortgagee may seek to enforce and not a liability which he may be compelled to discharge. Referring to the decision in Mulla Vittil Seethi v. Achuthan Nair1, the Full Bench in Nagendran Chettiar v. Lakshmi Ammal2, observed that the second mortgagee’s right to recover his mortgage money, his right to have an opportunity of redeeming the earlier mortgage or selling the property subject to the rights of the first mortgagee always remains. A simple mortgagee has no right to possession and the right to possession remains with the mortgagor. He is entitled to create a subsequent mortgage or sell the equity of redemption to a stranger and put him in possession. The rights of persons thus acquired cannot be prejudiced by the conduct of a prior mortgagee filing a suit to recover the money by sale of the properties without bringing them on record. The right of a prior simple mortgagee cannot be enlarged by his omission and he cannot take advantage of his own omission. As between the prior mortgagee and the puisne mortgagee, it has to be noted that, while the puisne mortgagee can bring a suit without impleading the prior mortgagee, the prior mortgagee is required to implead the puisne mortgagee as a party to his suit. Thus, while the suit brought by the prior mortgagee is defective, the suit by the puisne mortgagee does not suffer from any such defect. Thus, while the suit brought by the prior mortgagee is defective, the suit by the puisne mortgagee does not suffer from any such defect. While the puisne mortgage has a statutory right to redeem the prior mortgagee, the right of the purchaser in a suit by the prior mortgagee is as an assignee of the mortgagor. The auction purchaser’s claim as an assignee of the mortgagor is by virtue of a sale without notice to the puisne mortgagee as required under law. If the puisne mortgagee had been made a party, he would have had the option of redeeming the mortgage. By not making the puisne mortgagee a party, the right to which the puisne mortgagee was entitled, cannot be taken away or the right of the purchaser without notice be enhanced. Taking all the circumstances into consideration I am of the view that the right of the puisne mortgagee to redeem a prior mortgagee cannot be prejudiced by a Court sale at the instance of the prior mortgagee without impleading the puisne mortgagee. Though in law the purchaser in the prior mortgagee’s sale as an assignee of the mortgagor is entitled to redeem, his right of redemption in law or in equity cannot prevail oyer the puisne mortgagee’s right to redeem. In the result, I agree with the conclusion arrived at by the lower appellate Court and hold that the plaintiff is not entitled to redeem and dismiss the appeal with costs. The other two appeals are also dismissed with costs. Leave refused. M.K. ---------------- Appeal dismissed.