A sub-mortgagee, as a person claiming under the original mortgagee, should be entitled to apply for a final decree for sale if the original mortgagee fails to do so.

Sastri, J.

1. The question that falls to be decided in this second appeal is whether a sub-mortgagee impleaded as a defendant in a suit for sale brought by the original mortgagee is entitled to apply for a final decree where the preliminary decree for sale ascertained the amount due to him but contained no provision authorising him to make such an application on default of payment by the mortgagor of the amount due to the original mortgagee.

2. The defendants 1 and 2 in the suit executed, along with another a simple mortgage for Rs. 2,000 in favour of the plaintiffs father in respect of the suit properties on 22nd September, 1920. The plaintiffs father sub-mortgaged his mortgage right to secure a sum of Rs. 1,500 borrowed from the third defendant on 12th October, 1927 and effected a further sub-mortgage for Rs. 500 on 7th December, 1929 in favour of defendants 4 and 5. On, the adjudication of the fifth defendant as insolvent his interest in the sub-mortgage vested in the Official Receiver, the seventh defendant; and eventually passed by transfer to the defendants 8 to 10 who have since been substituted in the place of defendants 5 and 7. The original mortgagee sued to enforce the mortgage and a preliminary decree for sale was passed on 5th March, 1938, fixing 5th June, 1938, for payment of the amount declared due. On 5th March, 1941, defendants 8 to 10 filed an application (I.A. No. 126 of 1941) for passing a final decree in the suit, the mortgagor not having paid the amount due as directed by the preliminary decree, and the third defendant made a similar application (I.A. No. 158 of 1941) on 15th March, 1941, which was followed by an another application made by him I.A. No. 43 of 1942, dated 10th January, 1942, to transpose him as the second plaintiff. All these applications were opposed by the defendants 1 and 2 on the ground inter alia that neither under the terms of the preliminary decree nor under the law were the defendants 3 and 8 to 10 entitled to initiate proceedings for a final decree being passed in the suit and that transposition of the third defendant as the second plaintiff would not, even if ordered, avail him as on the date on which I A. No. 43 of 1942, was filed, an application for a final decree would be time barred. The trial Court overruled the objection, transposed the third defendant as second plaintiff, and passed a final decree for sale after scaling down the debt in accordance with the provisions of the Madras Agriculturists Relief Act, 1938. An appeal to the lower appellate Court having proved unsuccessful, the second defendant has brought this second appeal.

3. It has been held that Article 181 of the Limitation Act governs an application for a final decree in a suit for a sale or foreclosure, (See Subbalakshmi Ammal v. Ramanuja Chetti (1918)35MLJ552 ), and the application by the third defendant for his transposition as second plaintiff having been made more than three years after the date fixed for payment under the preliminary decree, such transposition cannot avail him, and his application for a final decree which no doubt was made within time must be dealt with as one made by him as the third defendant in the suit.

4. Now, the preliminary decree, after declaring the amounts respectively due to the plaintiff and the third defendant directed that the defendants 1 and 2 should pay into Court on or before the 5th day of June, 1938, the sum declared due to the plaintiff with further interest till date of payment, that on such payment the plaintiff should deliver up all documents in his possession relating to the mortgaged property to defendants 1 and 2 and that the amount deposited should be paid to the third defendant, the defendants 4, 5 and 7, and the balance if any to the plaintiff, and it provided that on default of payment as aforesaid, " the plaintiff may apply to the Court for a final decree for the sale of two-fifths of the mortgaged properties " (a third party having established his righ