This appeal arises out of a suit filed by the Kumbakonam Bank, Limited, represented by its Managing Director S. Mahalingam Iyer, for the recovery of Rs. 51,052.50 on an equitable mortgage executed by the first defendant. The bank impleaded the other members of the joint family, to have the decree binding on them, if it is found that the mortgaged properties are joint family properties. The 12th defendant in the suit was originally the owner of a major portion of the mortgaged properties covered by plaint A-1 Schedule. The 12th defendant sold the property to the first defendant on 29th May, 1942, for Rs. 95,000. A major portion of the consideration was paid by the first defendant, and for the balance of Rs. 5,000 he executed a promissory note in favour of the 12th defendant. Subsequently, he filed a suit O.S. No. 22 of 1953 on the file of the District Court, Nagapattinam, against the first defendant alone, and obtained a charge decree, in respect of the properties mentioned in plaint A-2 Schedule, a part of plaint A-1 Schedule. In pursuance of this decree, the 12th defendant brought the charged properties for sale, and the same was purchased by the 13th defendant. He obtained delivery of possession of A-2 Schedule properties, and he is now in possession of the same. Now, the plaintiff in this suit, the Bank, attacks the decree obtained by the 12th defendant against the first defendant as collusive. They also plead that the decree in O.S. No. 33 of 1953 is not binding on them, as they were not impleaded as parties in that suit. There are other parties in the suit with whom we are not concerned in this appeal. The learned Subordinate Judge of Mayuram held that the mortgaged properties are the joint family properties, that they are binding on the first defendant and other members of the joint family, that the decree obtained against the first defendant by the 12th defendant is neither collusive nor fraudulent and that the decree obtained by the 12th defendant against the first defendant is not binding on the plaintiff in the present suit, but being a valid decree, the Bank, the plaintiff in the present suit can proceed to work their claims subject to the rights under the mortgage which has merged in the decree in O.S. No. 33 of 1953. He has also held that the 13th defendant cannot get any better right than the 12th defendant. The learned Judge passed a decree for Rs. 51,000 in favour of the plaintiff-Bank subject to the prior charge in favour of the 12th defendant. Accordingly, a decree was passed in the following words:-

“And it is hereby further ordered and decreed that, in default of payment of aforesaid, the plaintiff may apply to the Court for a final decree for the sale of the charged property subject to prior charge in favour of the 12th defendant and on such application being made, the charged property or a sufficient part thereof shall be directed to be sold ;............”

Aggrieved by this decree, the 13th defendant has now filed the present appeal. The plaintiff in the suit is now taking steps to bring the A-2 Schedule properties for sale subject to prior charge. In effect, the 13th defendant will loose possession of the property and his purchase would be of no effect. His case is that he is a bona fide purchaser, that the 12th defendant, his vendor, has absolutely no notice of the equitable mortgage and that it is impossible for him to implead the Bank as a party in O.S. No. 23 of 1953, as the encumbrance certificate would not disclose the equitable mortgage.

Now the question for consideration is whether the form of the decree passed by the learned Subordinate Judge is proper under law. For a proper disposal of this case, it is necessary to state some more facts. The entire mortgage property comprised in A-1 Schedule is about 170-00 acres of wet lands and 112.71 acres of dry land. It is this extent of property which originally belonged to the 12th defendant, that was sold to the first defendant for Rs. 95,000 u