Lord Tomlin.-

On 22nd December 1917, a decree was obtained in a suit to enforce a mortgage against the mortgagor and a puisne mortgagee, who is respondent here. The decree was in the ordinary form of such decrees in India ; that is, six months were given for redemption, and at the end of that time in default of redemption the property was to be sold. The decree did not contain, and having regard to O. 34, Civil P. C., could not contain, a personal judgment against the mortgagor for the mortgage money. An appeal to the High Court against the decree was duly taken by the mortgagor.

On 31st August 1918, the decree was made absolute. On 25th October 1918 an application was made to the Subordinate Judge by the decree-holders to bring the property to sale.

On 2nd April 1919, an order of the High Court was made by consent for a stay, and the order was in these terms : Let the respondents' petition for execution"-the respondents means the decree-holders :

"now pending be stayed for the period of one year as and from 1st April 1919, upon the appellant"

(meaning thereby the mortgagor)

"furnishing solvent security in the lower Court to the satisfaction of the Subordinate Judge by 1st May 1919, for the sum of Rs. 1,12,000. In the event of the appellant's appeal to this Court not being disposed of within the period of one year calculated from 1st April 1919, let a further stay be granted for a period of one more year from 1st April 1920,upon the defendant's [sic] furnishing solvent security in the lower Court to the satisfaction of the Subordinate Judge for a further sum of Rs. 1,12,000 such last mentioned security to be furnished on or before 1st April 1920, in the event of such further or additional stay being necessary."

Pursuant to that order there was executed by the respondent here (he being as already indicated a puisne encumbrancer and as such defendant 2 to the suit) a bond by way of security to satisfy in part the solvent security required by the High Court for the sum of Rs. 1,12,000. The sum of Rs 1,12,000 seems to have been fixed because it represented one year's interest on the mortgage money, and the object was to put the decree-holders ultimately in the position of being no worse off by reason of one year's delay in enforcing their security.

The bond so executed by the respondent, was in this form : It recited the suit and the decree of 22nd December 1917, in favour of the plaintiffs in the suit and that the defendants in the suit had preferred appeals to the High Court, and it further recited that the decree-holders had applied to execute the decree and that the defendants had made an application for a stay and that they had been called upon to furnish security by the order of 2nd April 1919, to which reference has already been made. Then it proceeds as follows :

"Accordingly I of my own free will stand security, to the extent of Rs. 77,000 out of Rs. 1,12,000 as therein ordered and covenant that if the decree of the first Court be confirmed or varied by the appellate Courts within one year from 1st April 1919, the said defendants shall duly act in accordance with the decree of the said appellate Court and they shall pay the sum of Rs. 77,000 or whatever may be payable under the said High Court order not exceeding Rs. 77,000, but if they should fail to pay the sum of Rs.77,000 ; then any amount so payable as aforesaid shall be realized from my person and my legal representatives shall be personally liable to pay the same."

Up-to this point the document provides for the case of the decree of the first Court being confirmed or varied by the appellate Court within one year from 1st April 1919-an event which did not happen. The next clause however deals with events which did happen in the following terms :

"Be it known that if the judgment debtors fail to furnish security to the extent of rupees one lakh and twelve thousand on 1st April 1920 in case the appeals be not decided within that date then the decree-holders according to the orde