JUDGMENT

Bennet, J. - This is an execution second appeal by a decree-holder Ram Sarup. The facts are somewhat complicated and are as follows: Jagannath and his son Ram Sarup made three simple mortgages as follows; (1) on 26th July 1917 in favour of Gopi Nath; (2) on 16th November 1922 in favour of Raghubir Saran, (on this mortgage a decree has been obtained by Raghubir Saran on 11th January 1926) and (3) on 28th July 1926 in favour of Sahu Bhagwati Prasad and Sahu Jagdish Prasad, the respondents. One point to be noted is that the mortgage in favour of the respondents was executed at a date subsequent to the decree on the second mortgage which is now the decree under execution. It is therefore claimed that the provisions of Section 52, T.P. Act, apply in favour of the decree-holder. The third mortgage contained a provision that Rs. 2,100 were left for payment to Gopi Nath on the first mortgage, and on 29th July 1926 the same was actually paid to Gopi Nath amounting to Rs. 2,151-14-0 in full discharge of his first mortgage by the mortgagee of the third mortgage. The present appellant made an application on 13th January 1931 for substitution of his name, and on 14th March 1931 substitution was made. He then made an application on 10th November 1932 for execution. One point which has been held against him by the lower Court is that in these applications there was no proper vakalatnama because the vakalatnama bore the name of a certain vakil and that vakil was not in fact the vakil who made the application; but another vakil made the application. The vakalatnama was signed by the appellant and also by the vakil who made the application.

2. It was apparently by an error that the name of another vakil remained in the document. Under Order 3, Rule 4(1) it is provided that no pleader shall act in any case unless he has been appointed for the purpose by such person by a document in writing and signed by such person.... The question is whether actually this vakil was appointed by the appellant. The document in question was signed by the appellant and we are satisfied that he intended to appoint the vakil who made the application. The mere mistake that the name of some other vakil remained in the body of the document does not make any difference. In actual fact the vakil in question has been acting throughout for the appellant and it is a mere quibble to hold, as the learned Subordinate Judge has held, that he was not entitled to make the application. There have been recent pronouncements of this Court to the effect that where the vakil is actually intended by a party to act on his behalf and does so act formal defects of this nature are of no importance. This was the main ground on which the lower Court has held against the appellant. We hold that the decision of the lower Court was wrong.

3. A further point which was raised by the respondents against the claim of the appellant for execution was that the respondents were entitled to priority on account of their payment of Rs. 2,151-14-0 to the first mortgagee. This question has been very briefly dealt with by the Court below in a dozen lines and the Court considered that the claim of the respondents was well founded. The matter is one of considerable difficulty and cannot be so briefly disposed of. On 2nd February 1931 the respondents brought a suit on the third mortgage. This mortgage had no doubt the item of consideration of Rs. 2,100 for the first mortgage but the suit was based on the third mortgage and not at all on the first mortgage. The second point which is to be noted is that the respondents did not implead Raghubir Singh, the mortgagee on the second mortgage in suit although he had actually obtained a decree on the second mortgage nor did they implead the appellant to whom the decree had been sold on 30th December 1930 and who had the substitution made for his name on 14th March 1931.

4. We consider that it was a great defect in the suit that Raghubir Saran or his transferee was n