JUDGMENT

Trevelyan and Beverley, JJ. - The facts which it is necessary to narrate for the purpose of determining the questions which we have to decide in this appeal are as follows: On the 21st June 1886 the first defendant mortgaged to the plaintiff, for the purpose of securing the sum of two thousand rupees with interest at 24 per cent, per annum, one pucca house and a second house, partly pucca and partly cutgha, and the land upon which those houses stand, and a 2 annas and 8 gundas 2 dunts share in Mouza Chapra Harchand. On the 17th August 1886 the first defendant mortgaged to the father of the second defendant the -pucca house above mentioned. It is admitted that when this second mortgage was executed the mortgagee had no notice of the first mortgage, except so far as the fact that the first mortgage was registered can be said to have given him notice of it. On the 30th July 1887, the second defendant's father obtained a mortgage decree against the first defendant. On the 21st June 1889 the first defendant executed another bond for Rs. 1,440, the interest then due under the bond of 21st June 1886, and for a further loan of Rs. 800, and gave to the plaintiff another mortgage of the properties covered by the first mortgage in order to secure those two sums and interest thereon at 24 per cent, per annum, On the 15th April 1891, the property, the subject of the second mortgage, was sold in pursuance of the decree to which we have referred and was purchased by the second defendant. At that sale notice was given of the plaintiff's claim under the first mortgage. This suit was brought on the 4th April 1893 for the purpose of enforcing payment of the money due to the plaintiff on the first mortgage of 21st June 1886, the plaintiff giving up his claim under the second bond on the 21st June 1889.

2. The second defendant contended that the effect of the subsequent mortgage to the plaintiff was to satisfy the claims for interest under the first mortgage which had accrued due at the time of the execution of the subsequent mortgage; and he also contended that he was entitled under the terms of Section 81 of the Transfer of Property Act to require the plaintiff in execution of this decree to sell first those of the mortgaged properties which were not covered by mortgage to the second defendant. These two contentions were negatived by the learned Subordinate Judge, and the question which we have to decide is whether that decision is right.

3. With regard to the first question, we think we must hold that the interest due under the first mortgage was not satisfied by the subsequent mortgage. The learned Subordinate Judge has rightly acted on the authority of the case of Gopal Chandra Sreemany v. Herembo Chandra Haldar ILR 16 Cal. 523. The question is, as was shown in that case, one of intention; and it is not shown here that it was the intention of the parties to get rid of the earlier security. On the contrary, although the second bond of 1889 was given partly to secure the three years' interest then due upon the amount of the bond of 1886, it is clear that the real object was to secure compound interest upon that amount, and that the intention of the parties was that the bond of 1886 should be kept alive, not only as regards the principal and future interest, but also as regards the interest for those three years. The same property is. mortgaged; the interest payable is the same; and there is no acceptance of any debt under the bond of 1886.

4. We do not, however, agree with the view which the- learned Subordinate Judge has taken of the second question. This question in the main depends upon whether mere registration is notice within the meaning: of Section 81 of the Transfer of Property Act. Section 3 of that Act says: 'A person is said to have notice of a fact, when he actually knows that fact, or when but for wilful abstention from an enquiry or search, which he ought to-have made, or gross negligence, he would have known it." Although in