JUDGMENT

B. Upadhya, J. - This is a defendants' appeal arising out of a suit for the recovery of dues in respect of a simple mortgage dated the 26th October, 1925, executed by one Wajahat Husain, defendant No. 9, in favour of Musammat Mahmudunnissa, the original plaintiff, who died during the pendency of the case leaving the present appellants as her heirs and legal representatives. Subsequent transferees were also impleaded and were the other defendants in the case.

2. Wajahat Husain executed a simple mortgage of some of his properties in favour of Sumer Chand and Jagmendardas for Rs. 2,000 on the 28th February, 1923. Thereafter he executed a second mortgage for Rs. 8,000 on the 8th of August, 1925, hypothecating the properties already mortgaged and some other properties in favour of one Chiranjilal, father of Sumerchand and Jagmendardas. A third mortgage was the one dated the 26th October, 1925, which is the basis of the suit giving rise to this appeal

3. In 1931 the heirs of Chiranjilal brought Suit No. 110 of 1931 On the basis of the second mortgage dated the 8th of August, 1925, and impleaded Mst. Mohammadunnissa as a subsequent mortgagee and obtaining a decree got the properties sold on the 20th August, 1926 and purchased it themselves. These heirs, the defendants Nos. 4 to 8, are the present appellants and are new by the purchase aforesaid the owners of the property that was mortgaged by Wajahat Husain. It appears that defendants 1 and 3 had purchased some of these properties in execution of two simple money decrees passed by the Revenue Court for arrears of rent during the pendency of the above mortgage suit but after the sale in the mortgage decree they lost the rights that they had thus acquired.

4. Sumerchand and Jagmander Das, defendants 4 and 6 brought suit No. 384 of 1934 on foot of the first mortgage and obtained a decree on the 17th July, 1936, which was made final on the 9th February, 1942.

5. In the present suit filed by the third mortgagee the defendants 4 to 6 have pleaded inter alia that as they had purchased the properties in suit in execution of a decree passed on an earlier mortgage in a suit to which the plaintiff as a subsequent mortgagee was a party, all the rights which the plaintiff had acquired under the subsequent mortgage has been extinguished. It was contended that the plaintiff had the option of redeeming the prior mortgage which was sought to be enforced in that earlier litigation; and as he had not exercised that option, it was not open to him now to enforce the mortgage. It was pleaded in the alternative that in any event he was bound to pay the entire amount of the earlier mortgages before appropriating any part of the sale proceeds towards his own mortgage.

6. The learned Munsif after considering the effect of the amendment made to S. 101 of the Transfer of Property Act held that the plaintiff was entitled to get the property sold subject to the prior mortgages in favour of defendants 4 to 8 and he passed a decree accordingly. The defendants went up in appeal and the lower appellate court agreed with the view taken by the learned Munsif and with certain alterations in the list of properties to be sold upheld the decree of the trial court. The learned counsel for the appellants has invited my attention to the words of the final decree dated the 4th August, 1933 which was passed in the suit brought on the foot of the second mortgag: dated the 8th August, 1935, and to which Mst. Mahmuddunnissa, the subsequent mortgagee, was a party. The relevant passage is

muddaleh ya uski janib se kisi aur sakhsa ne ya d(sic)ar sakhsa ne jo rehan mazkur ko mun(sic)q karane ka mustahaq ho, hanoz ada nahin kiya

7. Meaning thereby that the defendant or anybod(sic) else on his behalf or any other person entitled to redeem Has not yet made the payment. It is contended that Mst. Mahmud-un-nissa being a defenc(sic)ant in that case was bound by the final decree as passed. Her failure to redeem debars her from claiming any