The intention of a party in keeping a prior incumbrance alive, for their benefit, determines their priority in mortgage enforcement.

1. The respondent, plaintiff, seeks to enforce a mortgage executed in his favour on the 15th December 1891. The sum of Rs 1,150 part of the sum advanced by him was, it is found, advanced and actually paid for the amount due under a decree dated the 20th March 1890, obtained by one Subba Reddi on a mortgage in his favour executed in the year 1887. The appellant was the holder of an intermediate incumbrance, dated the 4th February 1890 upon which also a decree was obtained on the 4th November 1890. Prior to the date of the respondents mortgage, there were, therefore, two mortgage decrees in existence, the earlier one in favour of Subba Reddi, the later in favour of the appellant. It is found as a fact that the respondent, when advancing Rs. 1,150 for the discharge of the earlier decree, intended to keep alive the prior incumbrance, and it has been held that he is to that extent entitled to priority as against the appellant whose incumbrance is intermediate in point of time.

2. On the hearing of the appeal, it was argued before us that inasmuch as Subba Reddis mortgage had become merged in the decree passed upon it and that decree had been satisfied, the intention of keeping it alive for his own benefit could not properly be imputed to the respondent. Notwithstanding the opinion to the cantrary expressed in the unreported case Subbaraya Cheety v. Ganga Razulungaru 7 M.L.J. 18 we are of opinion that the principle on which the respondent bases his claim to priority is not affected by the circumstance that the money advanced by him was advanced in order to pay off a mortgage debt due under a decree. It is sufficient for the respondent to show that there was a subsisting prior incumbrance, that his money was lent for the purpose of discharging it and that it was for his benefit that the prior incumbrance should still be kept alive. It cannot be said that he had any the less a right to keep the incumbrance alive, because it had taken the form of a decree. Toe same thing had happened in the case of Adams v. Angell 5 Ch. D. 698. Nor can it be said in the present case that the respondent did any thing which could seem to negative an intention on his part to adopt the course which it was obviously for his benefit to adopt.

The appeal is dismissed with costs.