Stone, J

[1] In this appeal brought by the plaintiff the question for determination is whether the Subordinate Judge was right in upholding the defence of limitation. The relevant facts are as follows:

[2] The plaintiff-mortgagee sued in O.S. No. 55 of 1919 on a mortgage making the mortgagors and a sub-mortgagee parties. It subsequently transpired that as to two of the properties they had been sold in Court-auction. The mortgagee at time of suit was unaware of this fact. The plaintiff in O.S. No. 55 of 1919 obtained a decree and purchased in Court-action. He derived no advantage because, the earlier purchasers not having been joined, their prior right was still outstanding. He then joined them and sued again. That suit is said to be barred unless the earlier purchasers can be deemed to have acknowledged the mortgage liability within the necessary period. The critical date is June 20th, .1921. There is a document Ex. F which may be sufficient acknowledgment. It is not necessary to consider whether it is or not, because it is long after the critical date having been executed on 30th July 192

7. It was chiefly relied upon in argument to show the intention underlying the earlier documents that were relied upon. The learned Sub-Judge was in our opinion right when he said in para. 9 of his judgment:

"An acknowledgment to be effective must amount to an unequivocal admission of a subsisting debt, i.e., subsisting at the time of the acknowledgment."

[3] Here the acknowledgment relied upon Is Ex. D coupled with Exs. C and II. It is also sought to couple it with Ex. F. It is our clear opinion however that in construing Ex. D one cannot give words therein a different meaning from their clear intent by looking at a document which came into existence eight years later. There thus remains for consideration Exs. C, D and II. Ex. C is a sale certificate. This certifies that the auction purchaser (defendant) purchased at a sale by public auction the lands. It includes the following expression:

The sale has been made subject to the mortgage decree charge on the abovesaid properties and some other properties for Rs. 4,000 created in favour of (plaintiff herein). The term" mortgage decree charge" is admittedly inaccurate.

[4] We proceed on the basis that it should be mortgage. Ex. D is a petition filed by the auction-purchaser. In it he makes the following allegations. (Para. 3):

At a sale by public auction I purchased the properties described hereunder for Rs. 153, and in support of it, I obtained a sale certificate (Ex. C).

[5] The schedule which describes the properties is unaccountably omitted from the printed papers. We are told it is the same as the schedule printed to Ex. E. We have however had the relevant schedule translated and find the words in point should read as follows:

The sale was held subject to the mortgage decree charge for Rs. 4,000 created over the above-said properties and some other properties in favour of (plaintiff), etc. I, the auction-purchaser, have accepted the delivery of possession of the property as described above...

[6] Ex. II is the notice of sale. It describes the subject matter of the sale. In the column headed "Description of property to be sold" are the words: "The estimated value thereof subject to the mortgage right mentioned in column 4 ...is, etc". The fourth column details the plaintiff s mortgage. From the foregoing it is clear that the auction-purchaser was buying a property which was described as subject to a mortgage and acknowledged that he had purchased property so described and had obtained delivery of the property so described, The question is whether that is a sufficient acknowledgment of an existing mortgage debt. In support of the contention that it is, a large number of authorities were cited. We do not propose to examine all these as many of them decide questions that are not in dispute including the proposition about which we never entertained a doubt that an unconditional acknowledgment of a subsisting debt implies a promise to pay. That question is not the question here. The question here is whether there is an unconditional acknowledgment of a subsisting mortgage.

[7] It may however be desirable before passing to a consideration of the authorities that are sufficiently in point to merit examination to state the authorities cited. These are Sanwal Das v. Ali Mehdi 1925 85 IC 330, Sidhani Ram v. Gargi Din 1924 89 IC 118, Har Narain v. Sheo Prasad (1913) 18 IC 95, Swaminatha Odayar v. Subbarama Iyer 1927 51 MLJ 856, Kalidas Chaudhuri v. Prasanna Kumar 1920 47 Cal 446, Dase Palai v. Narayana Patro , Official Assignee Madras v. Subramania Aiyar 1924 46 MLJ 1 [LQ/MadHC/1923/270] , Mani Ram v. Seth Rup Chand (1906) 33 Cal 1047, Hiralal v. Narsingh Lal (1913) 37 Bom 326, Sukhamoni Chowdharani v. Isan Chander (1898) 25 Cal 844, Muhammad Rafi v. Kirpa Ramji 1933 All 99, Uppi Haji v. Mammavan (1893) 16 Mad 366, 95 English Law Times 755, Ramabhadra Naidu v. Kadiriyasami Naicker 1922 44 Mad 483, Imam Ali v. Baij Nath (1906) 33 Cal 613 and Mt. Izzatunnissa Begam v. Partap Singh (1909) 31 All 58

3. On an examination of the above it will be found that it has been consistently held that where the circumstances are such that the person making a representation has his mind directed to the question of the existence of the debt or not and he represents that the debt exists or he represents facts only consistent with the inference that he admits the existence of the debt such representation will be deemed a sufficient acknowledgment. Here it is observed the defendant did not sign the sale proclamation; the representations in the notice are therefore not his. In the certificate of sale he is not the representing party and in the petition he is merely stating the terms under which the sale was held and the nature of the possession received. Suppose in point of fact it transpired that the sale proclamation was wrong and that at the material date there was no mortgage in fact, would he have been accountable to the mortgagee for the alleged mortgage amount In principle it is clear that he would not. Apart from principle the matter is concluded, so far as this Court is concerned, by the decision of the Judicial Committee in Mt. Izzatunnissa Begam v. Partap Singh (1909) 31 All 58

3. If it should transpire that there is no mortgage, the purchaser benefits. It might well be that there is no mortgage and that the sale proclamation is still accurate so far as the facts are known at the time. In the case cited the property at the date of sale did appear to be bound by a mortgage but the mortgage was subsequently held to be invalid. Sale proclamations do not conclude questions of title.

[8] In Sanwal Das v. Ali Mehdi 1925 85 IC 330, the sale proclamation was signed by the person said to have acknowledged. That of course makes all the difference. If a man says-"this property is subject to a mortgage" he acknowledges the mortgage. But if another says to him I sell this subject to a mortgage", and he buys, he does not acknowledge the mortgage. If he did the above decision would have been the other way. Sidhani Ram v. Gargi Din 1924 89 IC 118 is still further away. There the suit was a redemption suit and the defendant was claiming, if at all as mortgagee. Har Narain v. Sheo Prasad (1913) 18 IC 95 is a case such as would have arisen here had the plaintiff been able to rely on Ex. F. It does not touch the question of whether the other documents together constitute an acknowledgment. Kalidas Chaudhuri v. Prasanna Kumar 1920 47 Cal 446 is quite different from this case. There was an enquiry and the purchaser was in the same position as the seller who acknowledged liability, for both were bound by the findings. See also in Dase Palai v. Narayana Patro . In Hiralal v. Narsingh Lal (1913) 37 Bom. 326, not only was the acknowledgment the act of the person sought to be bound but the suit was a redemption suit, i.e., the act was done in circumstances only consistent with the view that the person acknowledging had his mind directed to the question of liability. In the circumstances here present we are clearly of the opinion that the learned Subordinate Judge was right in the view he took on the question of limitation as raised before him and we see no reason to disagree with the reasons he gave for taking that view.

[9] There remains another point which we must advert to. One piece of property was in the possession of the plaintiff-appellant at the time of trial. Consequently as he had in respect of that land all that he wanted he did not seek and indeed could hardly seek any remedy in respect of that, Subsequently he lost possession of that to a third party. He now asks for the joinder of that third party to this order alleging that otherwise he might be barred and anyhow will have to incur fresh court-fee expenses. On the view we now take, the point does not become of any importance but as the matter was argued we mention our conclusion on this branch of the argument. In our view in circumstances such as these as at present advised, we are of the opinion that his cause of action dated from the dispossession and the first evil feared does not arise: as to the second we knew not under what principle a stranger can be added as a party to a suit under a fresh cause of action after the suit has been decreed in order to save court-fee expenses. This relief must accordingly be refused. The above however does not in our opinion exhaust the matter. It will be observed that on the facts here present the result so far arrived at results in a conclusion that can only be regarded as unjust. It remains for consideration whether this unjust result cannot be avoided without doing violence to legal principles. Clearly to see how unjust the result is, it is necessary to marshal the various steps that have occurred with dates. These steps and dates are as follows: The mortgage debt became due under the terms of the mortgage in 190

9. The defendant first came on the scene and first became liable to be sued by the plaintiff by his purchase in Court auction of the property described as subject to a mortgage on 31st July 19

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8. No one suggests that the mortgagee had actual or constructive notice of that sale and even if he had he certainly could not have joined that person in any action on the mortgage until 31st July 19

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8. On 7th February 1919 delivery of possession was given to the auction-purchaser.

[10] On 31st July 1919 the action upon the mortgage was brought against the original mortgagor. It is not suggested that up to that date the mortgagee had notice actual or constructive of the purchase in Court auction. That fact was not disclosed in the pleadings. On 27th November 1919 a decree was obtained in the mortgage suit. Execution of that decree appears to have been much delayed and on 5th April 1926, the decree-holder purchased in Court auction.

[11] Having purchased he sought possession on 8th January 1928 and then for the first time learnt of the possession of the defendant when his possession was resisted. On 26th November 1929 he brought the present action asking, as his principle ground of claim, for delivery of possession, alternatively for payment of the amount due failing which sale. The defence at present under consideration is limitation and it is put thus: This is an action on the mortgage and consequently Article 132, Lim. Act, applies and accordingly the action was barred 12 years from the date the money became due. If this is sound it clearly imperils practically all simple mortgages when the mortgagee sues only towards the end of the period of limitation for in such a case the mortgagor can sell without notice actual, or (e. g., by registration) constructive and the mortgagee is then without effective remedy. His remedy against the mortgagor is infructuous because the mortgagor has got rid of his equity of redemption, and his remedy against the purchaser (though only the purchaser of the equity of redemption) is barred because before he can know of the existence of that purchase the 12 years has expired. Thus to put an extreme case suppose the period of limitation ends on the 1st January and the mortgagee waits until the 31st December the mortgagor can effectively defeat him by selling his equity on 30th December. Thus although the time is, as against the mortgagor, 12 years, in the case put, as. against the purchaser, it is less than two days and for these two days he is unaware of the existence of the purchaser.

[12] Before 30th December the purchaser could not be sued because he was in no way interested and after 1st January he cannot be sued. In between he cannot be sued because his existence is not known. This, if correct, is a perfectly general principle. It could be taken advantage of without any fraud and it is destructive of the security which a mortgagee ought to have. In our opinion having had the advantage of a full and able argument from Mr. K. Rajah, Ayyar, this result inevitably follows if the action against the purchaser is an action on the mortgage of exactly the same content as an action brought against the mortgagor. Before we come to examine whether that it so we observe that here the mortgagee, in ignorance and proper ignorance (different consideration arises if he knew or ought to have known) of the existence of any third party right, sued on the mortgage for a mortgage decree against the only person, interested in the equity of redemption so far as he was aware, viz., the mortgagor. He sued in time. One thing is clear. The purchaser being a stranger to that suit cannot have his rights adversely affected by that suit. Apart from that principle however he is, like the rest of the world, subject to the rights which that judgment confers upon the decree-holder. What are those rights. They include the right to call upon the mortgagor to redeem failing which to bring the property to sale and having bought to obtain possession.

[13] All these steps have been taken and properly taken. What follows Suppose after he had bought, a complete stranger was found in possession. Clearly a new cause of action springing from the judgment perfected by the taking of the steps which give to the mortgagee the right to possession will arise. To what extent is the purchaser in a different position from the rest of the world He is in a different position to this extent and in our opinion, to this extent only. He has purchased the equity of redemption. What rights flow from that He has the rights which his mortgagor had, substantive not adjective rights, viz., to have the option of retaining the property on paying the mortgage debt. That is what he brought and paid for. That right cannot be affected by a suit to which he was not a party. But apart from that he is in no better case than a trespasser. No one would argue that the cause of action against a trespasser for possession though founded on a title that commences with the mortgage that is crystallized by the mortgage decree and perfected by the purchase in execution is an action on the mortgage. Nor would anybody doubt that when suing originally upon the mortgage the mortgagee would have to join not only the mortgagor, but any third party purchaser from the mortgagor of whom he was aware or run the risk of being time barred. The difference between that case and this is that there the suit is upon the mortgage. There would be no other claim possible. But here that cause of action has been pursued.

[14] Thereafter a new cause of action be-gins. The matter may be tested in another way. Suppose the purchaser on the sale following upon the mortgage-decree had been a third party and not the mortgagee and suppose that purchaser had found a trespasser in possession. Would he have had no right to claim possession Clearly he would have had right. That right would not be founded on the mortgage but on the purchase. Why should not a mortgagee purchaser have the same right, i.e., a right qua purchaser as well as a right qua mortgagee It is said that this would result in a conclusion as intolerable as the one above examined for it would mean that the mortgagee could go on for ever pursuing now the mortgagor, then the mortgagor s purchaser, then that purchaser s purchaser and so on ad infinitum. This is not so. The new cause of action would be barred within the appropriate period. This action was brought within that period. It remains to consider whether on the decided cases there is either a decision binding upon us or such a volume of authority in a contrary sense as to make it impossible for us to come to the above conclusion. The cases cited were numerous, but only some are sufficiently in point to make it necessary to examine them in detail.

[15] In Surendralal Kundu v. Ahmed All 1933 60 Cal 1193, it was held that the purchaser in Court auction held in execution of a mortgage-decree given in an action to which the purchaser of the equity of redemption was not made a party and in which the equity of redemption was wholly unrepresented has no remedy against such purchaser 12 years after the money becomes due. That is in such circumstances Article 132 applies. That ease is distinguishable from this in a most important particular. There, at the time of action brought upon the mortgage, the mortgagee knew of the existence of the purchaser of the equity of redemption. With that knowledge he chose to sue a person not interested in the equity of redemption. That case was decided on the principle that if a mortgagee chooses to sue the wrong person, i.e., the person known to him to have no interest, the whole suit is misconceived; the resulting decree is nothing but a nullity. Stress was laid on the fact of knowledge and choice. Quite different considerations arise where there is no knowledge and accordingly no choice. If A landlord of property B let to tenant C chooses to sue X in ejectment the resulting decree cannot amount to very much and if he then sues C out of time C can raise the statute against him. In T.C. Bose v. Obeduo Rahman 1928 6 Rang 297, the facts at first sight appear camparable but on examination there is seen to be a vital difference. There the respondent was the purchaser in a Court auction held in execution of the mortgage decree. The mortgagee in the mortgage suit had only made the mortgagors parties and had not joined the appellant who had purchased the equity. It does not appear from the report whether the mortgagee was aware of the purchase or not.

[16] The Court put the auction-purchaser in possession. Then the prior purchaser claimed possession and his claim was upheld on the ground which we conceive to be sound that the mortgage-decree obtained in a suit to which that purchaser was not a party could not affect his rights. Accordingly his possession was upheld. Then the respondent sued on the mortgage for redemption of the mortgage and it was held that Article 132 applied (with which conclusion we also respectfully agree). Then the respondent asked to be allowed to amend so as to claim possession. That was refused on the ground that the claim for possession had already been adjudicated upon and the matter was res judicata. We do not feel called upon to express any opinion on this last point but obviously if, in a claim for possession, the action is still to be regarded as an action on the mortgage the same period of limitation as before would apply and the amendment would not get the plaintiff out of the difficulty he found himself in owing to the form of the action. We find nothing in this case in conflict with the view now expressed. Indeed the learned Chief Justice points out that between such parties the remedies that can be sought are not the same as in an action on the mortgage. The purchaser of the equity cannot be called upon to repay the money according to the contract. He points out that the claim then made for sale in default falls directly under Article 132 from which the rest follows. But here the primary claim is for possession. In Lachmi Narain Das v. Hirdey Narain 1926 24 ALJ 661, the Court (Mukerji and Boys, JJ.,) relying on Hargu Lal Singh v. Govind Rai (1897) 19 All 541 and Madan Lal v. Bhagwan Das (1899) 21 All 235, and refusing to follow Babu Lal v. Jalakia 1917 14 ALJ 1146, came to the conclusion that the decree and subsequent sale has no effect at all against the prior purchasers, because those prior purchasers were not parties to the mortgage suit. With great respect we feel that with this we are unable to agree. The mortgage-decree and the subsequent sale gives rights against all the world and it is idle for third parties to say that they were not parties to the mortgage suit. We prefer to put it thus as above. The decree and the sale cannot lessen the rights of the prior purchaser. That is a different proposition. We think that on such a contest as then arose the plaintiff was entitled to a qualified decree for possession, the qualifying condition being that the defendant should retain his rights intact. Those rights were to retain possession on redeeming. There are differences in the facts between the above case and this which make it unnecessary for us to dissent from the conclusion then arrived at but that case, and the cases there re-lied upon do, as a step in the argument, take a different view on the above point from the view we now take; that point is an essential step in the chain of reasoning and we are constrained therefore to differ, with all respect, from the opinions there expressed. We prefer the view taken in Babu Lal v. Jalakia 1917 14 ALJ 1146 a decision of the same High Court.

[17] In a recent case in this High Court Chandramma v. Seethan Naidu , the question to be decided was whether an amendment should be allowed. The date of the mortgage was 1909, the date of the purchase of the equity was 1912, the action was brought in 1926 and the amendment was sought in 192

7. The purpose of the amendment was to turn it into a suit for sale. It will be seen that the amendment would have to be refused on the view we take for suit was barred not only in 1927 but also in 1926 and the action was not for possession but for sale. The then purchasers of the equity were not left out in ignorance. The Court then, following Venkata Reddy v. Kunjappa Goundan 1924 47 Mad 551, took the view that the mortgage-decree does not extinguish the mortgage and the mortgagee or a purchaser from him can bring a suit on the mortgage against a purchaser of the equity not made a party to the mortgage suit, even though that person was known to exist at the time the mortgage suit was brought. It is then laid down that if such a suit is brought, i.e., a suit on the mortgage, time runs not from the date of the mortgage-decree, but from the date the money is due. We respectfully agree. The question here is, however, whether a suit on the mortgage exhausts the possible grounds of actions against a person that the mortgagee could not have joined in the mortgage suit because he was, without any fault on his part, unaware of his existence. The above case merely re-affirms what was decided by the Full Bench of this High Court in Mulla Veettil Seethal v. Achuthan Nair and what is not now disputed, viz., that a mortgage-decree cannot affect the rights of third parties whether a purchaser of the equity or a second mortgagee. Pugh v. Heath (1882) 7 AC 235 at p. 238, is distinguishable. It is concerned with English law and the effect of a foreclosure decree.

[18] In Babu Lal v. Jalakia 1917 14 ALJ 1146, property was mortgaged to A then to B by C. A sued C without impleading B. B sued C without impleading A. B obtained a decree and sold to X who got possession. Then A sold and bought. In a suit by A against B and C for payment alternatively for possession it was pointed out that the action was not a suit on the mortgage nor a suit to foreclose that mortgage. It was a suit brought after the mortgage had been extinguished upon a different cause of action, namely, the plaintiff s failure to obtain actual possession of the property at the sale of 30th July 191

2. Whether we should go the whole length of concurring in that view when a person sues on a mortgage leaving out interests which he knows exist or not we certainly think on the facts here present there is and must be a cause of action in addition to the action on the mortgage against a person who could not have been sued on the mortgage because his existence was not-known.

[19] We must not be understood as saying that upon decree the cause of action upon the mortgage has gone. Under the Transfer of Property Act as it stood before its amendment by the Code of Civil Procedure this would have occurred but it is now decided that the mortgage is not wholly merged in the decree. It can at least be used as a shield, Sukhi v. Gulam Safdar Khan 1922 43 All 469 at p. 47

5. It may indeed be sued on despite the decree according to the decision in Venkata Reddy v. Kunjappa Goundan 1924 47 Mad 551 as to which we express no opinion though we observe it purports to follow Sukhi v. Gulam Safdar Khan 1922 43 All 469, supra, wherein the Judicial Committee use very guarded language in expressing the extent to which the mortgage re-mains available after decree. We proceed on the view that a mortgagee circumstanced as here might according to Venkata Reddy v. Kunjappa Goundan 1924 47 Mad 551, sue on the mortgage (which in most cases would give him the fullest remedy) or he might proceed on the cause of action derived from his title as auction-purchaser. Cases of subrogation, which go to show that on the payment, by way of redemption of the mortgage amount (after decree obtained in a suit between mortgagee and mortgagor) by a second mortgagee a new cause of action accrues by way of subrogation to the person so paying, are not we feel sufficiently in point to make an examination of such cases, of which Gopi Narain Khanna v. Bansidar (1905) 27 All 325 is an example desirable. Nor are subrogation cases, such as, Rajkumari Debi v. Munkundalal Bandopadyaya 1921 25 CWN 283 which go to show that the person subrogated stands for the purpose of limitation in the shoes of the person to whom subrogated. These cases proceed on the footing that the rights are derived from the mortgage and the action is on the mortgage and the appropriate article therefore is Article 132 from which the rest follows : Here we are of the opinion that the right to possession is derived from the purchase which in turn can be relied on because it follows upon an action upon the mortgage which action was brought in time and was not a nullity though imperfect as against the prior purchaser of the equity.

[20] So also cases such as Jogeswar v. Moti 1922 66 I0 631 where the principle of lis pendens applies do not assist. Here the purchase was before suit and no question of lis pendens arises. The case reported in Raj Nath v. Narain Das 1914 36 All 567 relied upon by the defendant here does not in our opinion assist him. It is a Full Bench decision of the Allahabad High Court. It decides that where a suit on a mortgage admittedly in time, is brought against a trespasser who has been in possession adverse to the mortgagor Article 132 and not Article 144 (the application of which would have barred the suit) is the proper article. The learned Chief Justice there observed: (at p. 571),

I may point out at the commencement that the suit is not a suit for possession of immoveable property. It is precisely the suit that is mentioned in Article 18

2. I may also point out that the plaintiffs, on the admitted facts, could never have brought a suit for possession of the property against any one under Article 144 until -after a suit under Article 132 had been first brought. In my opinion a suit can always be brought under Article 132 against all persons in possession whose possession is subsequent to the date of the mortgage, provided that the suit itself is brought within 12 years from the time upon which the money became due.

[21] It does not in the least follow from the above that no suit other than a suit on the mortgage can be brought; it establishes that a suit on the mortgage must be brought before the suit for possession can lie. But if brought then the decree-holder may have another cause of action founded not on the mortgage but on his right to possession. Here a suit on the mortgage has been brought and we cannot regard that suit as a nullity. Part of the cause of action then litigated, viz., the part founded on the contract to re-pay could only lie against the mortgagor. It has resulted in a decree and that decree has been perfected by sale. As above observed neither decree nor sale can destroy the rights of persons not parties. But the defendant here has this property subject to the mortgage. If he had not clearly the plaintiff would have an ordinary action for possession available. But as the defendant has acquired that equity of redemption, a right and as that right cannot be lessened by a decree in an action to which he was not a party in an action for possession, the only possible order would be a conditional order for possession which would preserve his right to redeem. It is not the plaintiff who prays in aid rights flowing from the mortgage-his rights flow from purchase. It is the defendant who claims as the purchaser of a property from a mortgagor and who thereby can claim the right to redeem.

[22] It is well established by authorities binding on us that suits brought by simple mortgagees against mortgagors, or persons claiming under mortgagors, to enforce the mortgage by sale, are suits governed by Article 132: see Vasudeva Mudaliar v. Srinivasa Pillai (1907) 30 Mad 426, at p. 433, followed in Vyapuri v. Sonamma Boi Ammani 1916 39 Mad 811, at p. 8

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9. But though here the plaintiff was a mortgagee he is also a purchaser and, having brought his action on the mortgage (which he was perfectly entitled to do for despite the sale by the mortgagee, the mortgagee had remedies under the mortgage which confers contractual rights, which he retained against the mortgagor even after the sale by the mortgagor) having executed the decree and having purchased he then became entitled to new rights. We do not decide this case upon any general ground such as was involved by the Judicial Committee in Mt. Surnomoyee v. Shoosaee Mokhee (1867-69) 12 MIA 244, at 253, 254 or upon any supposed rule suspending for a time the operation of the statute. The cases are fully considered in Sarat Kamini Dasi v. Nagendra Nath Pal 1926 89 IC 1000, at 1005, et seq. They do not in fact touch upon the facts of this ease. We do not accordingly find anything in the authorities relied upon by the defendant that preclude us from taking the view we do and accordingly this appeal will be allowed. The consequential relief will accordingly be as is stated in my learned brother s judgment.

Ramesam, J.

[23] I have had the advantage of perusing the judgment of my learned brother and I agree with the conclusions and the reasons given. It is unnecessary for me to give any additional reasons so far as the first two points are concerned but so far as the third point is concerned, viz., what is the cause of action for a second suit by a mortgagee against a purchaser of the equity of redemption the latter not having been impleaded in the first suit and his purchase in execution sale having turned out to be imperfect-as this is a very important point and as there is very little direct authority on the point, I would like to add a few words.

[24] Where the mortgagee brings a suit against the mortgagor but without impleading the prior purchaser of the equity of redemption-whether by reason of his ignorance of the fact of such purchase or with knowledge of it-and purchases one of the mortgaged items in execution sale, one consequence is very clear and is so thoroughly established by the authorities that it is unnecessary to deal with it at great length. Most of the authorities are collected in the judgments in the Full Bench case in Nagendra Chattiar v. Lakshmi Ammal 1933 56 Mad 84

6. The purchaser of the equity of redemption, though he purchased the property subject to the mortgage and though he cannot get an absolute title in the property purchased, cannot be affected by the proceedings to which he was not a party. In the circumstances of the case he must still have the right to redeem the mortgage. Such opportunity of redemption must be given to him. But I wish to add another proposition which perhaps is not so much dealt with in the authorities and which seems to me to be equally clear.

[25] A mortgagee who takes a mortgage of property naturally expects that he will be able to work out his mortgage according to the circumstances existing at the time of the mortgage. It is reasonable on his part to suppose that he would not be adversely affected by transactions behind his back effected after his mortgage. That a sale of the equity of redemption made by the mortgagor after his mortgage and behind his back should throw obstacles in the way of his working out his security is as inequitable to him as that the purchaser of the equity of redemption should be affected by proceedings taken behind his back. In this case both the circumstances have happened. We have to see that each party is not adversely affected by the transaction or the proceeding of the other. In these circumstances a, new situation arises which is not perhaps the fault of either party. The mortgagee had to bring a suit impleading the purchaser of the equity of redemption. Such a suit has two purposes. From his own point of view he wishes to cure the defect of his former proceedings which have turned out to be imperfect. From this point of view of the purchaser of the equity of redemption, the mortgagee is in fairness bound to give him an opportunity to redeem the mortgage. From this double point of view such a suit has to be brought. That such a suit lies is now established by the authorities already referred to. The question that now arises is when does the cause of action for such a suit arise The best way of discussing such a question would be by dissociating the mortgagee and the purchaser in execution sale. That is, let us first imagine a case where one of the mortgaged items was purchased by a person other than the mortgagee in execution sale.

[26] Now it is clear that he has got a right and is under the duty of bringing a suit against the prior purchaser of the equity of redemption from the double point of view already mentioned, i.e., to cure the defect of his own title and to give an opportunity to the prior purchaser to redeem. In such a case the purchaser is not entitled to sue for the whole of the mortgage amount but only for the proportionate amount to which the item purchased by him is liable and the prior purchaser of the equity of redemption has got the right to redeem that item by paying such proportionate amount. Such a suit cannot therefore be for recovering the whole of the mortgage amount. Now what is the date of the cause of action for such a suit It cannot be earlier than the purchase in execution sale. Probably the exact date of the cause of action would be when the purchaser in execution sale was resisted in his attempt to obtain possession by the prior purchaser of the equity of redemption. The interval would not in general be very material. It will be ridiculous to say that in such a suit the cause of action arises on the date of the original mortgages because the prior purchaser of the equity of redemption did not exist at the time. It is the combination of new circumstances and the creation of a new situation and the equities arising out of such a situation that give the cause of action for this suit for which the cause of action as I said cannot be earlier than the date of the purchase. The purchaser does not sue any assignee of the mortgagee strictly so called nor can such a suit be described to be a suit based only on the mortgage.

[27] The next stage in the argument would be should the mortgagee be in a worse position if he is the purchaser simply because he was the mortgagee that brought the suit without impleading the purchaser of the equity of redemption. I do not see why he should be. In my opinion he has got the two capacities first his capacity as mortgagee and secondly his capacity as purchaser. If he relies on his capacity as mortgagee, it is open to him now to bring a suit which in strictness he ought to have brought in the very first instance, viz., a suit impleading besides the mortgagor the purchaser of the equity of redemption. In such a suit the purchaser of the equity of redemption has to redeem the whole of the mortgage amount though he purchased only one of the items mortgaged. There is no reason to split up the mortgage for purposes of redemption. But such a suit runs the risk of being barred by limitation. The mortgagee by dropping his capacity as purchaser and going back to his capacity as mortgagee and filing a suit on the original mortgage has one advantage and another disadvantage. The advantage is that he can insist on the purchaser of the equity of redemption to redeem the whole mortgage. The disadvantage is that his suit is very often barred by limitation. In such a suit the purchaser cannot claim to redeem by payment of a proportionate share of the mortgage on the ground that the mortgagee has purchased one of the items, for the mortgagee does not sue by reason of the cause of action afforded by the purchase.

[28] An example of such a decision is Venkata Reddy v. Kunjappa Goundan 1924 47 Mad 551, with the result of which I agree for that suit was filed in quo-mortgage. But such a suit furnishes only one of the alternative remedies of the mortgagee. If he relies on his capacity as purchaser, he gets a new cause of action from the date of resistance which in the present case is January 192

8. In this suit the purchaser of the equity of redemption can claim to redeem by paying a proportionate part of the mortgage amount but the date of the cause of action for such a suit is not. the date of the mortgage but the date. of resistance or the date of the purchase if the fact of the prior purchase was. already known to the mortgagee purchaser. Thus the mortgagee is in a converse situation in the second suit. The disadvantage of the former kind of suit becomes an advantage, i.e., there is no fear of the bar of limitation. The advantage of the former suit becomes a. disadvantage. He cannot insist on the. payment of the whole of the mortgage money. The purchaser of the equity of redemption can claim to redeem by paying a proportionate share of the mortgage amount. The reason for this is. clear. The mortgagee by his purchase in execution sale has split up the mortgage and he relies on the purchase in this suit. As I already remarked in the Full Bench decision in Nagendra Chattiar v. Lakshmi Ammal 1933 56 Mad 846 at p. 861, the purchaser in execution, sale "did purchase something." It would not be strictly accurate to say that he purchased nothing. No doubt his purchase was imperfect and something more had to be done by him to get the fruits of his mortgage. For instance by his first suit and the execution proceedings the original mortgagor s equity of redemption is at an end. Even after selling the equity of redemption the original mortgagor has still the right to redeem. For instance there may be cases where the mortgage is of more than one item. The mortgagor afterwards sold one of the items. In such a case he is interested in redeeming the mortgage by paying down the whole amount due though he himself does not possess one of the items mortgaged. We can well see that in such a case the mortgager may be so much interested in redeeming because the items in his possession are very valuable and he will thereupon have a claim for contribution from his vendee of the item sold. We can conceive other reasons why the mortgagor may be interested in redeeming even after the sale of one item. Anyhow it is legally certain that the mortgagor can redeem the mortgage in -such a suit and if the sale in execution is complete his equity of redemption is extinguished. So it cannot be said that the first suit and execution sale have no legal consequences. The purchase by -the mortgagee is good against the whole world except against the prior purchaser of the equity of redemption and when they meet face to face the mortgagee purchaser relies on the fact of his "purchase and the prior purchaser of the equity of redemption can claim to redeem by paying the proportionate part of the mortgage amount.

[29] I agree with the decision in Babu Lal v. Jalakia 1917 14 ALJ 1146 and dissent from the decision in Lachmi Narain Das v. Hirdey Narain 1926 24 ALJ 661. In the decision in Chandramma v. Seethan Naidu , the question of limitation did not directly arise but the only suggestion made on the question of limitation was that time would run from the date of the mortgage decree, and no other contention was put forward. That -decision is not an authority against the conclusion reached by me in this case. So also in the decision in T.C. Bose v. Obeduo Rahman 1928 6 Rang 297, the alternative contention was that time ran from the date of the mortgage decree. The present point was not suggested. So that decision is distinquishable but if it is not distinguishable I am unable to agree with it. There the purchaser if he sued for a proportionate part of the mortgage money his suit ought not to be barred on the ground indicated by me above which was not raised. These are all the decisions that have come nearest to the point raised in this case. It is hardly necessary for me to add that the very first suit by the mortgagee to recover the mortgage money cannot have a larger period than 12 years from the time when the money became payable merely because there is a purchaser of the equity of redemption or a trespasser on the property. To hold otherwise would be that a series of sales or trespassers may have the effect of indefinitely postponing limitation. This is the decision in Raj Nath v. Narain Das 1914 36 All 567 with which I entirely agree but which does not touch this case. There is no question of any new situation or new equities arising in such a case. I am not to be understood as agreeing with the decision in Govindachandra Ghosh v. Jamaluddin Mandal 1933 60 Cal 777 [LQ/CalHC/1933/27] , where at the time of the first suit the mortgagee was aware of the prior purchaser of the equity of redemption. It is unnecessary to express an opinion on the matter in this appeal. I must express my indebtedness to Mr. Rajah Ayyar for his very able and full argument. which has served considerably to clear up the legal position in my mind. The result would be that the mortgagee in this case is entitled to recover the portion of the mortgage amount to which the item purchased by defendants 1 to 3 is proportionately liable unless the defendants redeem. Before passing a redemption decree we call upon the lower Court to ascertain the amount to which this item is proportionately liable having regard to the value of all the items mortgaged. For the rest or the mortgage amount the mortgagee will have to take a similar action against the purchaser of the other item or items of which he obtained possession as mentioned in para. 6 of the plaint and from which he was afterwards dispossessed during the pendency of the suit. Fresh evidence may be allowed. Three months and ten days for objections.

[30] [In pursuance of the directions contained in the above judgment, the subordinate Judge of Tanjore submitted the following.]

Finding.

[31] I am directed to submit my finding as to the amount for which the Kovilampundi lands purchased by defendants 1 to 3 will be liable for the plaint mortgage.

[32] From the value so arrived at, the extent of the encumbrance in favour of Panchanada Ayyar, referred to in the mortgage will have to be deducted. Making calculations on the above basis, the amount to which the Kovilampundi properties purchased by the defendants 1 to 3 will be proportionately liable for the plaint mortgage will be Rs. 458-1-

6. [I have not been asked, (and parties did not want me to), to give any finding as regards issue 3 which relates to the question of interest]. My finding will be as above. The connected records are herewith submitted.

[33] (This appeal coming on for final hearing after the return of the finding of the lower Court upon the issue referred by this Court for trial the Court delivered the following)

[34] Judgment - We accept the finding that Rs. 458-1-6 is the proportionate amount of the mortgage for which the suit property was liable at the date of -the mortgage. The plaintiff is therefore entitled to recover Rs. 6969-10-1 x 460-1-0/1500 with interest at 6 per cent. from 27th May 1920 up to 9th November 1935 and further interest on the aggregate amount at 6 per cent up to date of payment. In default of payment on or within 9th "November 1935 the plaintiff will be entitled to recover his amount due by sale of the suit property as in the case of a mortgage decree. The plaintiff will be entitled to recover proportionate costs (the proportion being 460/1500) throughout.

[35] This appeal having been set down to be spoken before the Hon ble Sir Vepa Ramesam Kt. the Officiating Chief Justice and the Honourable Mr. Justice Cornish on Friday 26th day of July 1935, the Court by consent of parties made the following)

[36] ORDER - It is hereby agreed between the parties, that a sum of Rs. 3,800 (Rupees three thousand eight hundred) only should be paid into the Court of the Subordinate Judge of Tanjore by respondent 3 herein on or before 10th January 1936 in full satisfaction of the decree including all costs incurred up to date. The appellant is at liberty to draw the amount. If such deposit of the entire amount is not made by respondent 3 as aforesaid the decree as it stands will be operative and enforceable.