A subsequent mortgagee, not a party to the suit and execution proceedings under the prior mortgage, has the right to proceed against the mortgaged property as well as the surplus sale proceeds in Court, and the surplus money in Court is subject to the mortgage rights of the subsequent mortgagee.

Devadoss, J.

1. Defendants Nos. 1 to 3 mortgaged their property on 24th April 1912, by two deeds in. favour of Defendants Nos. 5 and 6 and Defendant No. 7. First defendant executed a third mortgage in favour of the plaintiff on 5th September 1916, Defendants Nos. 5 and 6 brought O.S. No. 3 of 1908, impleading the 7th defendant second mortgagee and obtained a mortgage decree. The third mortgagee, the plaintiff, was not a party to that suit. The property was sold in October 1919 and was purchased by the 4th defendant for Rs. 20,000. The 1st and 2nd mortgagees Defendants Nos. 5 and 6 and 7 were paid the amount due on the mortgages. Eighth defendant who had obtained a money-decree against Defendants Nos. 1 to 3 attached the surplus amount in Court and was paid by a cheque for Rs. 4,585. The plaintiff attempted to prevent the 8th defendant from cashing the cheque, but his attempts were of no avail. The money now in Court is about Rs. 1,000. The plaintiff has brought this suit on his mortgage and prays that the amount due to him on his mortgage may be paid out of the sum in Court and that the 8th defendant be directed to pay back into Court the sum drawn by him and that in the alternative the mortgaged property be sold for satisfying his debt and also prays for a personal decree against Defendants Nos. 1 to 3. The District Munsif gave a mortgage decree in favour of the plaintiff and held that the plaintiff was entitled to the surplus in Court realized in execution of the decree obtained by Defendants Nos. 5 and 6 and that the 8th defendant must refund the amount drawn by him. Against this decree 8th defendant appealed. On appeal the Subordinate Judge held that the plaintiff could only proceed against the property mortgaged to him and purchased by the 4th defendant and the proceeds of the sale hold in execution of the decree in favour of the Defendants Nos. 5 and 6 were not subject to the mortgage right of the plaintiff and the amount remaining after meeting the claims of the 1st and 2nd mortgagees, Defendants Nos. 5, 6 and 7, was the property of the mortgagor and as such could not be proceeded against by the plaintiff. With regard to the amount in Court he held that it would be available to the plaintiff in case he is unable to realise his debt by the sale of the hypotheca. Fourth defendant has preferred this appeal.

2. The contention of Mr. Varadachari is that the sale proceeds in Court represent the mortgaged property and the plaintiff is entitled to proceed against the money in Court after the claims of the prior mortgagees have been satisfied. The surplus proceeds of the sale are sufficient to meet the claim of the plaintiff. It is urged that inasmuch as the plaintiff was not a party to the suit of the prior mortgagees, his right to proceed against the property is unaffected and the proceeds in Court have been realized by the sale of the mortgaged property and the lien of mortgage right against the property attaches itself to the money in Court. It is also urged that the plaintiff has an option either to proceed against the mortgaged property by bringing it to sale or to proceed against the surplus sale proceeds in Court if the proceeds are sufficient to satisfy his claim. On the other hand, Mr. K.V. Krishnaswami Iyer contends that the remedy of the puisne mortgagee who was not a party to the suit of the prior mortgagee is only against the mortgaged property. He could either redeem the prior mortgagees? or ask for the sale of the property and bring the property to sale ; but he cannot claim to be paid out of the surplus sale-proceeds in Court as they are the property of the mortgagor. He further contends that the sale was subject to the encumbrance of the plaintiff and what was sold represented the interest of the prior mortgagees as well as that of the puisne mortgagee together with the equity of redemption and that the puisne mortgagee should only look to the purchaser for payment of his mortgage debt and has no claim ag