Ramachandra Iyer, J.-

This is an appeal against a preliminary mortgage decree passed by the Subordinate Judge of Vellore in O.S. No. 89 of 1949. Defendants 2 to 4 are the appellants. The three items of properties which are the subject-matter of the decree originally belonged to two persons, Mottayya and Ramaswamy. They mortgaged the properties in the year 1921 under three documents, Exhibits A-1, A-2 and A-3 to one Venkatachala. Venkatachala in turn executed a mortgage on 1st February, 1953, under Exhibit A-4 in favour of one Muthukumara whereby he created a security over his mortgage rights acquired under Exhibits A-1 to A-3 and his other properties for a sum of Rs. 7,500. Muthukumara, whose interests with regard to that debt subsequently devolved on his brother, Narayanaswami, was then in the position of a sub-mortgagee with reference to the suit properties. A few months later Venkatachala purchased the equity of redemption in the suit properties from Mottayya and Ramaswamy. In 1929 Venkatachala mortgaged under Exhibit B-2 his interest in the suit properties to one Vaidyalinga. In execution of a money decree against Venkatachala, his rights, viz., the equity of redemption in the suit properties, were sold in Court auction, and purchased by one Natesa. Natesa obtained possession of the suit properties through Court in February, 1934. Thereafter Narayanaswami filed O.S. No. 3 of 1936 in the District Court of North Arcot at Vellore for enforcing the mortgage Exhibit A-4. While Vaidyalinga, the subsequent mortgagee of the said properties was impleaded as a party to that suit, Natesa, the owner of the equity of redemption, was not so impleaded. The suit properties were mentioned as Items Nos. 9, 12 and 13 in that suit but in view of the fact that Natesa was not impleaded there was no effective representation of the persons interested in the right of redemption of Exhibits A-1 to A-3. In O.S. No. 3 of 1936 a preliminary mortgage decree was passed on 31st August, 1938 and the same was followed by a final decree on 29th October, 1940. In the interval, that is, on 1st May, 1940, Vaidyalinga purchased the rights of Natesa in the suit properties. The decree-holder Narayanaswami filed E.P. No. 35 of 1942 for sale of the mortgaged properties including the suit properties. Vaidyalinga objected to the sale of the suit properties on the ground that his predecessor-in-title Natesa, the owner of the equity of redemption was not a party to the suit and therefore the decree could not bind his interest. The executing Court overruled the objection and directed the suit properties to be sold. Against that order Vaidyalinga preferred an appeal C.M.A. No. 368 of 1943 to this Court. Lakshmana Rao and Horwill, JJ., who heard the appeal held that as Natesa was not made a party to the suit, neither he nor Vaidyalinga who subsequently obtained his rights would be bound by the decree regarding the suit properties. But as there was no finding by the executing Court as to whether those persons did acquire the rights claimed, the learned Judges remitted the case to the executing Court for an enquiry in that regard and directed that if it was proved that Natesa acquired the equity of redemption in the suit properties prior to the institution of O.S. No. 3 of 1936 and that Vaidyalinga acquired those rights from him, the Court should proceed to sell only the mortgage right under Exhibits A-1 to A-3. But if on the other hand Vaidyalinga failed to prove those points, the suit properties, that is, those covered by Exhibits A-1 to A-3, could themselves be sold. In furtherance of the order of remand, the District Judge of North Arcot enquired into the matter and held that Natesa had validly acquired the equity of redemption in the suit properties prior to the institution of O.S. No. 3 of 1936 and that Vaidyalinga had acquired his rights. He therefore directed execution should proceed not against the properties as such but by sale of the mortgage rights under Exhibits

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