The main legal point established in the judgment is the application of subrogation rights under Section 74 of the Transfer of Property Act and the determination of the limitation period for enforcing mortgage charges.

Wallace, J.

1. I agree generally with the judgment just read by my learned brother. I only wish to add some remarks chiefly with reference to my judgment in Parvati Ammal v. Venkatarama Aiyar A. I. R. 1925 Mad. 80 In that judgment I have dealt with most of the cases which have been cited before us. It has been strongly and with reason relied upon by the appellant in this case, but has also been quoted in support of a view which has never been expressed therein, though I must now concede that the main position which I took up there requires reconsideration. In that case the question arose of the rights of a puisne mortgagee who had paid up an execution sale amount for which the property had been brought to sale on a prior mortgagees decree. The proposition for decision in that case I state at p. 318:

The point for decision is whether, when she paid it off, she is to be subrogated to it (the charge which she paid off), in its original form as a mortgage charge, or to it in the form into which it had developed, namely, the right to sell the property in discharge of the mortgage decree. I think the latter view is the correct one.

2. Then at page 319,I went on to say that since the mortgage charge had become unenforceable as such because it has developed into a decree charge, I could not see why the puisne mortgagor should be relegated to the unenforceable charge and denied the enforceable one.

3. The appellants contention here now is that in using the words "decree charge," I intended to lay down that some sort of new mortgage charge was created which could somehow be enforced in some other way than the decree could be enforced, and was somehow exempt from the incidents and conditions under which the decree must be enforced, and that particularly therefore the limitation period within which it can be enforced would be 12 years from the date of the decree although the decree itself must be enforced within three years. This interpretation of the words decree charge is, I should have thought, obviously untenable on the whole trend of that judgment. The mortgage charge had become merged in a decree and was inseparable from it and was subject to the conditions which govern the enforcement of the decree. The "decree charge" is simply the right which the decree gave to sell the property in discharge of the prior mortgagees debt. At page 320 of that judgment I went on to say:

I hold, therefore, that plaintiff is subrogated to the decree charge held by the prior mortgagee, i. e., the right to hold the property to sale to discharge the decree debt; and that right is free of any restriction that it should be worked out within the period of limitation for the enforcement of the original mortgage.

4. That is all I then said on the question of the puisne mortgagees rights. Of the manner in which these rights should be worked out I indicated that in view of the Privy Council ruling in Gopi Narain Khanna v. Bansidhar [1905] 27 All. 325 the proper method for the puisne mortgagee in that case was by suit. But the period of limitation within which these rights should be worked out did not arise in that case.

5. In the present case the important questions are: What is the method by which the puisne mortgagee should work out his rights as subrogee under the first mortgage which has become merged in a decree, and what is the period of limitation within which he should do so? The obvious straightforward method would be to allow him to take over the execution of the decree. This was the old view taken by this Court in Bavanna v. Balaguribi [1899] 9 M. L. J. 177 but this view has been overruled by the Privy Council in Gopi Narain Khanna v. Bansidhar [1905] 27 All. 325 where it was pointed out that such a method is impossible when the decree itself does not provide for such a substitution of the original decree-holder, and the Committee further indicated that the proper course was to ensure that the decree will provide for such substitution. That is easy