JUDGMENT

Braund, J. - Two appeals are before us, the first arising out of a suit No. 12 of 1933 tried by the Second Civil Judge of Meerut, and the other arising out of a suit No. 44 of 1934 tried by the same Judge. The two suits were in the nature of cross-suits and can conveniently be dealt with in one judgment.

2. The first of these two suits, No. 12 of 1933, was a suit by five plaintiff, mortgagees for the sale of certain property of which they claimed to be first mortgagees under a mortgage of 9-2-1921. Since the priority of this mortgage of 1921 relative to another mortgage of 1922 is one of the matters in issue in these appeals, 1 shall refer to it, not as the first mortgage, but as the "1921 mortgage". The plaintiffs in the first suit claimed as first mortgagees under the 1921 mortgage. The first two defendants to the suit were the mortgagors, Sheikh Nazim Uddin and Sheikh Ala Uddin. It appears that throughout the transactions relative to the several mortgages which are in question in these proceedings, Ala Uddin executed the various mortgage instruments merely for what is technically known as "further assurance". He himself claims no actual beneficial interest in the property mortgaged; but was made a party to the various mortgage instruments for the satisfaction of the mortgagees so as to release any scintilla of beneficial interest he might have had; but it is nowhere shown that in fact he bad any such interest. The second set of defendants to the suit (apart from the Official Receiver, who does not appear at any stage to have been a proper party) were the mortgagees under a mortgage instrument executed, by the same mortgagors of (inter alia) the same property as was comprised in the 1921 mortgage. This mortgage was a mortgage of 26-8-1922, and is hereinafter referred to as the "1922 mortgage". The mortgagees under the 1922 mortgage were, therefore, made defendants to the first suit in the capacity of subsequent mortgagees.

3. The 1921 mortgage on which the plaintiffs sued was a mortgage of certain property in the village of Sikri near Ghaziabad, which is hereinafter called "the Ghaziabad property" to distinguish it from the "Meerut property" which will be mentioned presently. The 1921 mortgage comprised the Ghaziabad property and nothing else, and was to secure a principal sum of Rs. 30,000 with interest at 8 per cent, per annum. Under the 1921 mortgage the plaintiffs claimed a gross sum for principal and interest which, at the date of the suit, amounted to Rs. 76,986. By their plaint of 9-2-1933a very long time agothey claimed the usual relief by way of sale under a simple mortgage. And it has to be noticed that they went out of their way to plead, first that the 1922 mortgage was altogether inoperative because it was improperly executed and, secondly that, even if it was properly executed, it was only a second mortgage. This was a case of anticipating the defence.

4. The defence of the mortgagors was to admit the 1921 mortgage and to deny the 1922 mortgage in toto on the ground of defective execution. To this extent the mortgagors marched with the 1921 mortgagees, who were the plaintiffs. But neither the plaintiffs nor the mortgagors at that stage gave any particulars of the defective execution, nor specifically pleaded anything about defective registration. In view, however, of the subsequent suit which brought the issues out more clearly, that is not perhaps now a serious matter. The mortgagors then went on to say that the interest was excessive. That is not in issue in this appeal, finally they said that the mortgagor, Ala Uddin, had no interest in the Ghaziabad property and was not actually a mortgagor at all. That seems to have been true, except for the further assurance given by him.

5. The defence of the 1922 mortgagees was that, after a formal denial of the 1921 mortgage altogether, they said that they were in any case prior mortgagees by virtue of the 1922 mortgage itself, which they asserted to have been prop