The main legal point established in the judgment is that a suit by an auction-purchaser situated as the plaintiff in the case is maintainable despite the satisfaction of the prior mortgage debt, as the prior mortgage is not extinguished for all purposes and the auction-purchaser had acquired rights in the property.

Horace Owen Compton Beasley, Kt., C.J.

1. This second appeal has been placed before a Bench because of a contention by the appellants Advocate that the Bench decisions in Muthukumarasami Pillai v. Muthuswami Thevan (1926) 52 M.L.J. 148 and Jagannadha Rao v. Basavayya AIR1927Mad835 throw doubt on the observations in Venkata Reddy v. Kunjappa Goundan I.L.R. (1923) 47 Mad. 551 : 46 M.L.J. 391 on which the two lower Courts have relied.

2. The suit was really a controversy between two rival purchasers of the same mortgaged property. The plaintiff, was the purchaser in execution of a decree passed on a prior mortgage which I will call Mortgage No. 1 whilst the first defendant was the purchaser in execution of a decree passed on a puisne mortgage which I will call mortgage No. 2. No. 2 mortgagee brought his suit first and obtained a decree in 1922. Afterwards No. 1 mortgagee brought her suit and obtained her decree in 1924. To No. 2 mortgage suit No. 1 mortgagee was not made a party. To No. 1 mortgage suit No. 2 mortgagee was not made a party. The plaintiff in the suit was the, purchaser in execution of No. 1 mortgage decree. It is conceded that the purchase price paid by the plaintiff was more than sufficient to pay off the No. 1 mortgage debt. The plaintiff attempted to get delivery of possession but was obstructed by the purchaser in No. 2 mortgage and failed to get possession through the Court. The plaintiff then filed the present suit on No. 1 mortgage for a sale of the mortgaged property giving an opportunity to the purchaser under No. 2 mortgage to redeem it. Both Courts found that the plaintiff was entitled to bring the suit and gave a decree accordingly. In both Courts the decision in Venkat Reddy v. Kunjappa Goundan I.L.R. (1923) 47 Mad 551 : 46 M.L.J. 391 was relied upon as showing that such a suit as this is maintainable. It is conceded here very fairly by Mr. T.M. Krishnaswami Aiyar on behelf of the appellant that he is unable to distinguish the facts of this case from those in Venkat Reddy v. Kunjappa Goundan I.L.R. (1923) 47 Mad 551 : 46 M.L.J. 391 and that, if that decision is correct, this appeal must fail, This admission simplifies matters very much and we have now only to see how far, if at all, that decision has been approved of or followed or whether doubts have been thrown upon it by other decisions. I propose, in deciding this question, to consider only decisions of this High Court, Mr. T.M. Krishnaswami Aiyars contention is that the plaintiff is not entitle to file his suit on No. 1 mortgage because such a suit cannot lie unless the Court-auction sale in No. 2 mortgage suit has been set aside and that, as a period of 30 days alone is allowed for the setting aside of a Court-auction-sale and the Court-auction-sale not having been set aside within that period, this suit is not maintainable. In support of this contention he refers to Muthukumarasami Pillai v. Muthuswami Thevan I.L.R. (1926) 50 Mad. 639 : 52 M.L.J. 148. There a decree-holder got the properties of some one other than the judgment-debtor sold in execution of his decree, purchased them himself and entered up satisfaction. More than thirty days after the sale, he found out his mistake and applied for further execution by setting aside the sale and it was held that the application for further execution was unsustainable as the sale though of a strangers property was not void and as the prayer for setting it aside under Order 21, Rule 91, which was necessary preliminary for further execution could not be granted being barred by Article 166 of the Limitation Act. In this case the principle of caveat emptor was applied it being pointed out that a Court sale carries no guarantee that the property is the property of the judgment-debtor and that the auction-purchaser takes the risk and bears the loss if it is subsequently discovered not to be the property of the judgment-debtor and that there is no warrant for the proposition that a sale by the court o