Abdur Rahman, J.

1. The only question that awaits to be determined in this appeal relates to the form in which a preliminary decree in a suit for sale brought by a puisne mortgagee should be passed when the prior mortgagee was impleaded as a party to the action and was willing to have the property sold free from his incumbrance on the condition that he should be paid first out of the proceeds of the property mortgaged with him. The trial Court passed such a decree but on appeal by the puisne mortgagee, the District Judge of Trichinopoly modified it and ordered (he property to be sold subject to the prior incumbrance. He did so as he was of opinion that Order 34, Rule 12, Civil Procedure Code, could be of no avail to the prior mortgagee, and that he could not, according to a decision of this Court reported in Venkatesa Aiyangar v. Manikkavachakam Chetty AIR1935Mad660 make an application under that rule. The prior mortgagee, who figured as the 7th defendant in this litigation, appeals.

2. It might be mentioned at the outset that only one (the first) item of the property was mortgaged with the prior mortgagee while several other items were mortgaged with the plaintiff-respondent