JUDGMENT

Mukerji, J. - This letters Patent appeal arises owing to a difference of opinion between two learned Judges of this Court, with the result that the judgment of the learned Judge was upheld. The question before us has narrowed itself down very much. The two learned Judges heard three appeals in the first instance against the same judgment of the Court below. All the three appeals were dismissed, but there was a difference of opinion as regards Appeal No. 7 of 1.922, which is now before us again in the shape of the Letters Patent appeal.

2. The facts, so far as they are involved in the appeal of Abbas Ali (since deceased and now represented by his widow and some), are these: The respondent R. B. Chotey Lal brought Suit No. 219 of 1920 for recovery of a very large sum of money amounting to over a lac of rupees from certain properties and a large number of defendants, numbering 24. The suit was based on the mortgage-deed for Rupees 40,000, dated the 2nd of September 1908. The plaintiff contended that he had paid the sum of Rs. 35,000 and odd towards the satisfaction of two prior mortgages: one held by one Sabu Ram Kumar and the other held by Hargulal, but paid off by Ram Kumar and bearing dates, 27th April 1900, and 7th January 1901, and had thereby obtained priority for that sum against three villages Choharpur Bagad, Shahjehanpur and Athain. His case, therefore, was that, so far as this sum of money and the interest thereupon was concerned, this money should come, in the first instance, out of these three villages. He admitted that the Defendants Nos. 2 to 7, among whom was Abbas Ali, were prior mortgagees with respect to the remaining portion of his claim; in other words, he said that in respect of the remaining portion of his claim, the property mortgaged to him should be sold subject to the prior charge of the Defendants Nos. 2 to 7.

3. The plaintiff was not concerned with the villages Choharpur Bagad and Shahjehanpar beyond the satisfaction of the sum of Rs. 35,000 and odd and interest. He had, however, a claim for the satisfaction of his remaining portion of the money from the village Athain after the claim of the Defendants Nos. 2 to 7 had been satisfied. It appears further that a sum of Rs. 1,232 is in deposit in Court, being the balance of the sale proceeds of a 10 biswas share in village Muhammadpur Patti Jagir. The plaintiff claims that he is entitled to, recover this sum of money in part satisfaction of his claim. Several defendants raised several points but Abbas Ali contended that as regards" Athain he had a prior charge and that as regards this sum of Rs. 1,232 he was the person who had a prior charge.

4. We have to consider whether the two claims of the plaintiff are to be upheld as they have been upheld by the original Court. As regards Athain, the plaintiff's claim stands thus. As already stated, Ram Kumar held two mortgages, one of 1900 and the other of 1901, against properties Athain, Choharpur Bagad and Shahjehanpur. There were other properties involved in the mortgages but Ram Kumar never sought to bring them to sale apparently because they had been sold under a prior mortgage. The earlier mortgage was held by Hargu Lal. Ram Kumar satisfied that mortgage and consequently brought a suit for recovery of the sums of money covered by the two mortgages. This suit was No. 5 of 1907 and to this Abbas Ali was a party, Chotey Lal satisfied the decree, that was passed in favour of Ram Kumar, on the execution in his favour of the mortgage in suit. The mortgage in suit was executed to satisfy the mortgage decree of Ram Kumar and the balance was paid to the mortgagor. Chotey Lal says that the sum of Rs. 35,000 and odd that went to satisfy Ram Kumar's decree ought to come in the first instance from the villages of Athain, Choharpur and Shahjehanpur. Abbas Ali's defence with respect to this portion of the claim is this: The decree that was passed in favour of Ram Kumar was passed u/s 89 of the Transfer of Property Act