The main legal point established in the judgment is that a second mortgagee has the same rights as the first mortgagee with reference to their security, and their rights are unaffected by the suit of the first mortgagee to which they are not made parties and the decrees passed therein and the sale made in pursuance thereof.

1. The order of reference in this case states the following question for the decision of the Full Bench : "Whether a first mortgagee who has purchased the mortgaged property in execution of a decree on his mortgage and sues for possession or in the alternative for the recovery of his money is entitled to a decree for possession subject to redemption by a puisne mortgagee with possession who was not a party to the suit by the first mortgagee?"

2. Our answer is in the negative. There are conflicting decisions of this and the other Indian High Courts on the question which it is impossible to reconcile. The source of the difficulty seems to lie mainly in arriving at a definite conception of the rights of the second mortgagee. Section 60 of the Transfer of Property Act lays down the right of the mortgagor to redeem the mortgage. Section 75 of the Act gives every second or other subsequent mortgagee the same rights as against the prior mortgagee as the mortgagor has against him as regards the redemption, foreclosure or bale of the mortgaged property. As the mortgagor is entitled to redeem the first mortgage, the second mortgagee is likewise entitled to redeem the first. As regards foreclosure and sale, they are the rights of the mortgagee and not of the mortgagor though, when a decree for foreclosure or sale is made, any rights that the mortgagor may have in the carrying out of the foreclosure or sale, may also be claimed by the second or other subsequent mortgagee. But has the second mortgagee any other right than that of redemption? The section simply says that whatever rights he may have against the mortgagor he will have them against incumbrances subsequent to himself in date. But what are the rights of the puisne mortgagee against his mortgagor over and above his right of redemption of the prior mortgage? Has he the right to bring to sale the equity of redemption of his mortgagor and has he the right of foreclosure? Discussing the rights of mortgagees, Hunter says in his Roman Law, page 537 : "If the same thing has been hypothecated successively to several persons, only the first of them has the power of sale, unless a subsequent creditor has put himself in the place of the first." That is to say, it is open to the second mortgagee to redeem the first mortgage and then ask for the sale of the mortgaged property standing in the shoes of the first mortgagee. But otherwise he has no independent right of sale of the equity of redemption of his mortgagor DR. Mackeldy in his Handbook of Roman Law says on the authority of the Code and the Digest : "A posterior hypothecatee is generally not permitted to sell the hypotheca with the consent of the prior one, unless the prior ones claim will be satisfied by the sale" - Section 354. In Ramu Naickan v. Subbaraya Mudali (1873) 7 M.H.C.R. 229, Holloway, Officiating Chief Justice, and Kindersley J. speaking of the second mortgagee say : "Dernberg justly observes that the subsequent mortgagee gets all to which he is entitled when he is allowed to redeem the prior mortgagee." This statement of the view of the continental jurist is in accordance with the strict English notion of the equity of redemption. The property mortgaged passes absolutely at Common Law to the mortgagee. The legal effect of the forfeiture on breach of the condition could not be altered at Common Law but it was relieved against in equity. Thus the mortgagor had an equity to redeem. Any transferee of that equity, as a second mortgagee, is entitled to the same equity. But the second mortgage of the mortgagors equity to redeem with rights of sale and foreclosure must at first sight seem anomalous. But when the equity of the mortgagor is itself recognised as an estate see Lord Hardwick in Casborne v. Scarfe (1737) 1 Atk. 602 there can be no difficulty in a mortgage of that estate attended with rights in the mortgagee similar to those of the first mortgagee. A fortiori where both mortgagee and mortgagor have legal estates,