The right of a puisne mortgagee to possession is determined by the date of the institution of the first mortgagee's suit and not by the date of sale.

NARASIMHAM, J.

( 1 ) THIS second appeal is against the appellate judgment of the Subordinate judge of Cuttack-Balasore reversing the judgment of the Munsif of Balasore and dismissing the plaintiff's suit for recovery of possession of about 1. 27 1/3 acres of land in village Raghunathpur, in Bhadrak Sub-division of Balasore District.

( 2 ) ONE Sheikh Hadu was the original owner of about 2. 19 acres of raiyati laud in the village. On 18th October 1924, he executed a simple mortgage of the said property in favour of defendant 1. On 17th September 1936, defendant 1 instituted a mortgage suit (O. S. No. 418 of 1936) on the foot of the said mortgage impleading Sheik Halim the son of Sheik Hadu the having died in the meanwhile) and in due course obtained a final decree on 30th November 1939. The property was sold on 15th January 1943 and purchased by the mortgagee himself (defendant 1) who obtained delivery of possession through Court on 10th June 1943. He then sold the property to defendants 2 and 3 on 27th June 1943. Their claim to the property is thus based on the sale in execution of the mortgage decree in O. S. No. 418 of 1996, delivery of possession through Court and the subsequent private sale by the mortgagee auction purchaser (defendant l) in their favour.

( 3 ) THE plaintiff's claim to the property is based on a puisne mortgage executed in his favour by Sheik Halim, son of Sheik Hadu on 9th June 1927. The property covered by the puisne mortgage was only one-half of the property covered by the first mortgage of 1924. But the puisne mortgage was a usufructuary mortgage and the mortgagee (the plaintiff) obtained possession of the plots soon after the execution of the mortgage. Subsequently, however, be was dispossessed and then instead of bringing a suit for possession as usufructuary mortgagee he brought a suit for sale on 9th April 1936 (O. S. No. 130 of 1936) without impleading the first mortgagee (defendant 1) as a party. In due course he obtained a final decree and purchased the property in execution of the decree on 6th November 1937 and obtained delivery of possession on 16th january 1939. When defendant 1 brought the property to sale in execution of his mortgage decree, the plaintiff objected under Order 21, RULE 58, Civil P. C. , but his objection was overruled and hence the necessity for the present suit. The plaintiff further stated that he continued in possession since 16th January 1938 and that defendant 1 did not dispossess him by virtue of the delivery of possession obtained by him on 10th June 1943. He, therefore, prayed for confirmation of possession or in the alternative for recovery of possession Bat the lower appellate Court reversing the finding of the trial Court held that the plaintiff was actually dispossessed by defendant 1 on 10th June 1943. This finding being a finding on facts is thus concluded. The present suit of the plaintiff is, therefore, in essence a suit for recovery of possession. In the defendant's mortgage suit the plaintiff was not made a party and similarly in the plaintiff's mortgage suit also defendant 1 was not made a party. In this judgment defendant 1 will be referred to as the first mortgagee and the plaintiff as the puisne mortgagee.

( 4 ) THE main point in controversy is about the right to possession as between auction purchasers at sales of prior and puisne mortgagees who have not made each other a party regarding which there is a sharp conflict of judicial decisions and a bewildering array of case laws. Before entering into a discussion of this point, I may give below the relevant dates of the two mortgages. First mortgage, simple in nature, in favour of defendant 1. Second mortgage in favour of the plaintiff usufructuary in nature and relating to only one-half of the property covered by the first mortgage.

( 5 ) THE first point to consider is whether the principle of lis pendens would apply to the sale dated 6th November 1937 in favour of the puisne mortgagee. It is true