Kulwant Sahay, J.This is an appeal by defendants 1 and 2 and it arises out of a suit brought by the plaintiff for a declaration of his title to a 5 annas 1 pies share in mauza Rautara and for recovery of possession thereof with an alternative relief for a decree for redemption. The facts found are shortly these:

Two brothers Kanchan Lal Singh and Gobinda Singh held a 9 annas 1 pies share in mauza Rautara in niskar right the share of Kanchan Lal Singh being 5 annaa 1 pies and that of his brother Gobinda, 4 annas. On the 7th Phagun 1301 B.S. (18th February 1895) Kanchan Lal Singh (who, it appears, had inherited his brothers share) settled the entire 9 annas 1 pies share with Guhi Ram the father of defendants 1 and 2 at an annual mokarrari rental of Rs. 74. On the same date he executed an usufructuary mortgage in favour of Guhi Ram for an advance of Rs. 1,200. It was agreed that the mortgagee should set off a sum of Rs. 50 out of the mokarrari rent of Rs. 74 towards the repayment of the mortgage money Rs. 1,200 and by this arrangement the entire amount was to be repaid within a period of 24 years from 1302--1325 B.S. The mortgagee Guhi Ram thus became the mokarraridar of the 9 annas 1 pies interest and the usufructuary mortgagee thereof with the right to appropriate Rs. 50 per year out of the mokarrari rent, and the balance Rs. 24 was to be paid every year to the proprietor Kanchan Lal Singh.

Kanchan Lal had two sons, Ramchandra and Pitamber. Ramchandra predeceased his father leaving a son Baidyanath who is also now dead and is represented by his widow Srimati Durgamani Bibi, defendant 3. Pitamber is also dead and defendants 4--7 represent his interest.

After the death of Kanchan Lal his grandson Baidyanath and his son Pitamber executed a simple mortgage in favour of Guhi Ram on the 20th Bhadra 1305 (4th September) 1898 mortgaging their interest in the entire 9 annas 1 pies share in the village. On the 11th Paus 1305 B.S. (25th December 1898) Baidyanath and pitamber sold annas 1 pies share in the village to Jadab Lal Aditya Deb the father of the plaintiff for a sum of Rs. 2,499-2-0. The sale comprised other properties also with which we are not concerned. The 5 annas 1 pies share of mauza Rautara was on this date held by Guhi Ram under the usufructuary mortgage of February 1895 and hence it was stipulated that the purchaser will be entitled to take possession of this 5 annas and 1 pies share after the expiry of the term of the usufructuary mortgage and thus his possession was to accrue from 1326 B.S.

2. The plaintiffs case is that out of the mukarrari rent of Rs. 74 payable by Guhi Ram under the mukarrari of 18th February 1895 he was entitled to realize Rs. 41-1-15 as his rent proportionate to the 5 annas 1 pies share purchased by him from 1326 B.S. Defendants 1 and 2, the representatives of Guhi Ram, however, refused to pay the rent to the plaintiff after the expiry of the term of the usufructuary mortgage on the ground that they had purchased the interest of Baidyanath and Pitambar in execution of a mortgage decree against them. The plaintiffs case is that he was not aware of the mortgage or of the mortgage decree and on enquiry he had come to learn that a suit had been instituted upon the simple mortgage of 4th September 1898 and decree obtained thereon in execution whereof the mortgaged property was sold and purchased by Guhi Ram himself who obtained delivery of possession from Court. The plaintiffs case is that he is entitled to possession in any event on redemption of his mortgage as he was not made a party to the mortgage suit.

3. The mortgage suit of Pitamber was instituted in 1908 and a decree was made on 14th July 1908 and the mortgaged property was sold in execution of that decree on 19th February 1912.

4. The defence of defendants 1 and 2 was that the purchase alleged to have been made by the plaintiffs father was not a real transaction, but that it was a benami transaction, and that their father Guhi Ram had acquired a valid title by his purchase in execution of his mortgage decree.

5. The learned Munsif before whom the suit came on for trial held that the purchase under which the plaintiff claimed, was a real and bona fide purchase for consideration. He further held that the mortgage of Guhi Ram was a real transaction and that the plaintiff was a necessary party to the mortgage suit of Guhi Ram, and as he had not been made a party he was still entitled to redeem. A question arose as regards the terms upon which redemption should be allowed, and the learned Munsif directed that the plaintiff should be allowed to redeem by paying defendants 1 and 2 his share of the mortgage debt with interest. He directed an account to be taken of the money that may be due to defendants 1 and 2 proportionate to the 5 annas 1 pies share of the mortgaged property purchased by the plaintiff on the basis of the mortgage bond with interest thereon at the bond rate till the date of the decree in the mortgage suit of Guhi Ram less the profit enjoyed by defendants 1 and 2 and their father during the period commencing from 1326 to the date of the institution of the suit, as the plaintiffs right to possess the purchased share accrued in 1326 B.S. On the account being taken, the amount found due proportionate to the 5 annas 1 pies share purchased by the plaintiff was Rupees 1,306-13-6, and the Munsif accordingly made a decree for redemption on payment of this sum.

6. Defendants 1 and 2 went in appeal before the Subordinate Judge and the plaintiff preferred a cross appeal as regards the amount which he ought to pay to redeem the mortgage. The learned Subordinate Judge upheld the decree of the Munsif as regards the plaintiffs right to redeem, but he altered the decree as regards the amount which he has reduced to the sum of Rs. 30-14-9.

7. The present appeal is filed by defendants 1 and 2 and two points have been raised on their behalf: (1) that Guhi Ram was not bound to make the plaintiff a party in his mortgage suit of 1908; and (2) that the amount on the payment whereof redemption should be decreed has been erroneously calculated by the Subordinate Judge and that the amount fixed by the Munsif was the correct amount.

8. As regards the first point reliance is placed upon the terms of Section 85, T.P. Act. The contention is that the mortgage suit was instituted by Guhi Ram in the year 1908 when the Civil Procedure Code, (Act 5 of 1908) with the provisions contained in Order 34, had not come into force and Section 85, T.P. Act, had not been repealed. The suit of Guhi Ram was, therefore, governed by the Transfer of Property Act as it stood before its amendment by the CPC of 1908. Section 85, T.P. Act, provided: subject to the provisions of the CPC (1882) Section 437, all persons having an interest in the property comprised in a mortgage must be joined as parties to any suit under this Chapter relating to such mortgage: provided that the plaintiff has notice of such interest. (This proviso does not find a place in Order 34, Rule 1, Civil P.C. 1908). It is therefore contended that Guhi Ram was not bound to make the plaintiff or his father a party to his mortgage suit unless it was shown that he had notice of his purchase. This contention requires a finding on the question whether or not Guhi Ram had knowledge of the purchase of the plaintiffs father. It requires a finding on a question of fact which does not appear to have been raised in either of the Courts below. Both the Courts below proceeded on the assumption that the plaintiffs father was a necessary party in the mortgage suit of Guhi Ram. It is too late now for the appellants to contend that it had not been shown that Guhi Ram had notice of the plaintiffs purchase. The question ought to have been raised in the Courts below so that evidence, might have been given on the point. The appellants, therefore, cannot be allowed to raise this question for the first time in second appeal.

9. The second question relates to the amount on payment whereof the plaintiff ought to be allowed to redeem. The learned Subordinate Judge has held that the plaintiff must pay his proportionate share of the mortgage debt due under the mortgage decree in favour of Guhi Ram minus the profits which he would have received in respect of his share from the year 1326 when he was entitled to possession in terms of his kabala. The amount due under the mortgage decree was Rs. 494-3-6 and he found the proportionate share due from the plaintiff in respect of the 5 annas 1 pies was Rs. 277-9-3. From this he deducted a sum of Rs. 246-10-6 being six times Rs. 41-1-9, the annual rent which the plaintiff was entitled to recover from Guhi Ram as the mukarraridar for the six years 1326/1331, and he found the balance of Rs. 30-14-9 to be the amount which the plaintiff was liable to pay in order to redeem the mortgage. In this the learned Subordinate Judge is clearly wrong. The plaintiff repudiates the mortgage decree. He says he is not bound by it. The amount for which the mortgage decree was made cannot be the amount which the plaintiff is bound to pay. His liability rests on the terms of the mortgage bond itself. He says he is not bound by the decree; and, consequently, he cannot be allowed to take advantage of the terms of the decree. We are not aware how the sum of Rs. 494-3-6 was found due upon the mortgage of Guhi Ram. It may be that Guhi Ram had remitted a portion of the mortgage debt. In any event the amount decreed in the mortgage suit cannot be the basis upon which redemption can be allowed. So far as the plaintiff is concerned his rights and liabilities must be determined by the terms of the original mortgage bond of 4th September 1898.

10. This view was taken by the Privy Council in Umes Chunder Sircar v. Zahur Fatima [1891] 18 Cal. 164. In that case Lord Hobhouse said:

Persons who have taken transfers of property subject to a mortgage cannot be bound by proceedings in a subsequent suit between the prior mortgagee and the mortgagor to which they are never made parties,

and then is considering the question on which terms the redemption was to be made his Lordships observed: "The decree" which the prior mortgagee had obtained in the absence of the subsequent mortgagee,

can only operate between the parties to the suit, and those who claim under them. The plaintiff getting the security of a decree has his interest reduced in the generality of cases. But the plaintiff in this case comes to take away from Zahur the benefit of the decree. It would be unjust if he could use the decree to cut down her interest, while he deprives her of the whole advantage of it, His case is, that as to him Zahur is still but a mortgagee, and if so, she should be allowed such benefit as her mortgage gives her. If Zahur had not got a decree, and the plaintiff had come to redeem her mortgage, he must, have paid whatever interest her contract entitled her to, and the Court would have no jurisdiction to cut it down; and that is the position in which the parties are placed by the decree in this suit.

The same view was taken by the Privy Council in Ganga Prasad Sahu v. Land Mortgage Bank of India [1894] 21 Cal. 366.

11. The plaintiff respondent, however, relies upon the decision of the Privy Council in Matru Lal v. Durga Kunwar AIR 1920 P.C. 79, In this case the decree on the mortgage of the prior mortgagee to which the second mortgagee was not a party had been passed before the year 1909 when Section 89, T.P. Act, was repealed by the CPC of 1908. In this case it was held that an order made u/s 89, T.P. Act for the sale of the mortgaged property has the effect of substituting the right of sale thereby conferred upon the mortgagee for his rights under the mortgage, and the latter rights are extinguished. Where, therefore, a first mortgagee brought a suit for sale under the Transfer of Property Act on his mortgage without, making a second mortgage of the same property a party to his suit, and obtained a decree for sale and purchased the property under that decree, and the second mortgagee afterwards sued on her mortgage, the amount to be paid by the second mortgagee was to be calculated on the basis of the decree and not with regard be the amount due on the prior mortgage, and their Lordships followed a previous decision of the Privy Council in Het Ram v. Shadi Ram AIR 1918 P.C. 34. These two decisions of the Privy Council proceeded on a construction of Section 89, T.P. Act under which on the making of the order absolute for sale the security as well as the defendants right to redemption were held to be extinguished and for the right of the mortgagee under his security there is substituted the right to a sale conferred by the decree. In none of these two decisions the several rulings of the High Courts in India on the interpretation of Section 89, T.P. Act, were brought to the notice of their Lordships.

12. It was held u/s 89, T.P. Act, that the right to redeem was not extinguished on the making of the order absolute for sale u/s 89 of the Act, but upon the actual sale and confirmation thereof by Court (vide the Full Bench decision of the Calcutta High Court in Bibi Jan Bibi v. Sachi Bewa [1904] 31 Cal. 863 and several rulings of the Madras, Bombay and Allahabad High Courts referred to therein). In Sukhi v. Ghulam Safdar Khan AIR 1922 P.C. 11 Lord Dunedin referred to Vanamikalinga Mudali v. Chidambara Chetty [1906] 29 Mad. 37 and observed that this case does not seem to have been brought to the notice of the Board in Het Rams case. In Ram Narain Sah v. Sahdeo Singh AIR 1922 Pat. 181 Das, J., doubts that the decision of the Judicial Committee in Het Ram v. Shadi Ram AIR 1918 P.C. 34 is the last word on the subject. The difficulty created by the words "and thereafter the defendants right to redeem and the security shall both be extinguished" occurring at the end of Section 89, T.P. Act, does not arise under the present law contained in Order 34, Rule 1, Civil P.C., 1908, and it is clear that if the decree had been passed under the CPC of 1908 the plaintiff could not be heard to say that the redemption should be ordered on the basis of the mortgage decree obtained by Guhi Ram and not on the basis of the mortgage bond. In the presents case it has not been shown when the final order for sale was passed in Guhi Rams case. We have got the date of the decree, viz, the 14th July 1908. The CPC of 1908 came into force from the 1st January 1909, and it is possible that the order absolute for sale, which under the Code of 1908 has to assume the form of a final decree for sale, might have been passed after the CPC of 1908 came into force. The sale actually took place in February 1912 long after the Code of 1908 had come into force, and it can reasonably be contended that the present case is governed by the provisions of the Code of 1908 and not by Section 89, T.P. Act.

13. Under the circumstances of this case it is clear that the order made by the Subordinate Judge was incorrect and redemption should be allowed only on payment of the amount due under the mortgage of September 1898, with interest calculated thereon at the bond rate up to the date of redemption, from which should be deducted the sum of Rs. 41-1-9 per year being the amount which the plaintiff was entitled to recover from defendants 1 and 2 from the year 1326 B.S. This account was taken under orders of the Munsif and the amount found due was Rs. 1306-13-6 and the plaintiff would be bound to pay this sum before he can be allowed to redeem. The appellants, however, have valued their appeal at RS. 617 only, and, therefore, the amount must be limited to the value of the appeal. The decree of the Subordinate Judge is, therefore, varied and it is declared that the plaintiff is entitled to redeem on payment of the sum of Rs. 617 instead of the sum of Rs. 30 14-9 as ordered by the Subordinate Judge. With this variation of the amount the decree of the Subordinate Judge will stand. The plaintiff will have two months to deposit this amount in Court, otherwise the suit will stand dismissed.

14. As each party has succeeded to a certain extent the parties will bear their own costs in this appeal.

Adami, J.

15. I agree.