JUDGMENT

Walsh, J. - This is an execution first appeal, raising a question which is by no means infrequent and which is constantly accompanied with difficulties of solution. The learned Judge, from whose order the appeal is brought, rightly says that it is not free from difficulty. He evidently felt doubts himself. The only criticism which one can pass upon his judgment is that he relied upon somewhat antiquated reports in the face of some resent decisions by Benches of this Court. The question is whether a mortgagee who has obtained a simple money-decree, has obtained a such decree in satisfaction of a claim arising under his mortgage-within the meaning of Order XXXIV, Rule 14, Civil Procedure Code, so as to deprive him from bringing the mortgaged property to sale in execution of his decree. The lower Court has decided the question against the mortgagee, who appeals. It seems superfluous in these days to point out once more that this provision in the First Schedule to the Code supplements old Section 99 of the transfer of Property Act in a modified form, more favourable, if that be an appropriate expression, to the mortgagee, and the principle aimed at, and the mischief sought to be avoided, by this enactment is that inasmuch as equity has always leaned against tiny attempt to clog or destroy the equity of redemption, a mortgagee who has substituted mortgagee rights may not give the go-by to the mortgage and the rights given by the mortgage against the security, and obtain a simple money-decree and then endeavour to sell under the decree the property originally mortgaged, and by becoming purchaser acquire the proprietorship unencumbered by the equity of redemption, Recent cases in this Court have dearly established the principles on which this provision should be applied. On one side of the line there is the decision in the case of Kadma Pasin v. Muhammad Ali 50 Ind. Cas. 134 : 41 A. 399 : 17 A.L.J. 481 decided by my brother Piggott and myself. There the decree had been obtained upon an agreement which had been entered into not in substitution of or modification of but to supplement the mortgage-deed. I cannot do better the n quote, as I quoted in my judgment in that case, the statement of the Subordinate Judge. He says: "it seems to me to be drawing an unjustifiably subtle distinction to say that the claim arose, not under the mortgage, but under the separate agreement, when that agreement was made as a direct consequence of the mortgage, and as a means of giving effect to the conditions of the mortgage." On the other side of the line are two recent decisions:

(1) the case of Chedi Lal v. Saadat-un-nissa Bibi 36 Ind. Cas. 907 : 39 A. 36 : 14 A.L.J. 902 to which I also was a party, where it was held that the bar created by Rule 14 of Order XXXIV did not apply where the mortgage had become extinct by the expiration of time.

(2) the case of Suraj Narain Singh v. Jagbali Shukul 57 Ind. Cas. 14 : 42 A. 566 : 2 U.P.L.R. 196 : 18 A.L.J. 677 where my brothers Tudball and Sulaiman, after examining into the facts of the case, held that the bar did not apply because the mortgagee, seeing the force of the mortgagors' contention that the mortgage was not enforceable, had to abandon his claim under the mortgage. The vital words of Rule 14 are these: "In satisfaction of a claim arising under the mortgage." It dearly contemplates an existing surviving mortgage. It clearly does not contemplate a claim when the mortgage has ceased to exist. It would require words such as arising out of" or "in relation to" in order to give such an effect to the provision. The duty of the Court, therefore, in all these cases and in this case-the task is by no means a simple one--is to examine all the circumstances and particularly the conduct of the parties, where there has been previous litigation over the mortgage, Shortly stated, the circumstances of this case are that the mortgage was granted for sir land and also certain Zamindari. In breach of the provision