JUDGMENT :

STANLEY, C.J.:— The question raised in this appeal is one upon which a divergence of opinion is to be found in the decisions of the several High Courts. The facts are shortly as follows:— The respondent, Muhammad Ihtisam Ali, instituted a suit for foreclosure of mortgage by which the mortgagors purported to hypothecate five villages. The title of the mortgagors to two of the villages was successfully impeached in the suit, and on the 19th of June, 1899, a decree was passed under section 86 of the Transfer of Property Act for foreclosure as regards three only of the villages mentioned in the deed of mortgage, in default of payment by the defendants of a sum of Rs. 39,584-6-8 on or before the 19th of December, 1899 The plaintiff, being dissatisfied with the exclusion from the operation of this decree of two of the villages purported to have been hypothecated by the mortgage, preferred an appeal against so much of that order as dismissed his suit in respect of two of the mortgaged villages. This appeal was dismissed on the 4th of August, 1902. No part of the mortgage debt was paid, and on the 15th of September, 1903, the decree-holder applied under section 87 of the Transfer of Property Act for an order absolute for foreclosure. To this application the judgment-debtors objected on the ground that the decree passed on the 19th of June, 1899, became absolute on the 19th of December, 1899, the date fixed for payment, and that on the last mentioned date the plaintiff became entitled to file an application for an order absolute under section 87, and that the application for such order, which was filed on the 15th of September, 1903, more than three years after the 19th of December, 1899, was barred by article 178 of Schedule ii of the limitation Act. The learned Subordinate Judge held that the starting-point for computing limitation was the 4th of August, 1963, the day on which the decree of the High Court was passed and that therefore the application of the decree-holder was within time. The order absolute for foreclosure was accordingly passed on the 23rd of November, 1903, From this order the present appeal has been preferred, and as the question involved in it is one upon which the authorities are not in accord, it was referred for determination to a Bench of three Judges.

2. All the authorities have been laid before us, but I do not think that any useful purpose would be served by lengthened-comment upon them. The question involved appears to me to be one of principle, which can best be solved by keeping in view the true nature of a mortgage security and the remedies for the enforcement of that security which are provided by law. A mortgage in equity is a debt, the payment of which is secured upon land. In England, upon the death of a mortgagee, the benefit of the security devolves upon the personal representative of the mortgagee and not upon his heir; but in this country in which the personal representatives are also the heirs, the devolution is to the heirs. Payment of the debt may be enforced by sale or by foreclosure of the mortgaged property.

3. Upon foreclosure the security is converted into land and the debt is discharged, the effect of the order absolute being to vest the equitable estate of the mortgagor in the mortgagee as effectually as if it had been conveyed by deed. In England the quality of personal estate is not lost until the final order for foreclosure has been passed, (Thompson v. Grant, [1819] 4 Mad., 438.). In that case LEACH, V.C. observes that “there is neither authority nor principle for stating that the order of foreclosure relates back to the decree for the account,” that is to the decree nisi. It is only when an order absolute has been passed that the property becomes real estate and as such devolves upon the heir. So, in this country the security in the hands of the mortgagee changes its character and becomes the immoveable property of the mortgagee only, I think, when the order absolute has b