ORDER

1. This is a defendant's appeal arising out of a suit for sale on the basis of a mortgage deed dated 2nd September 1919. The claim was mainly contested by the defendant-appellant who held a mortgage of 22nd April 1928, but claimed priority on account of the payment of two mortgage decrees which had been obtained before his mortgage on the basis of two earlier mortgages of 18th September 1909 and 20th July 1918. These mortgages were simple mortgages and the decrees were decrees for sale to which the present plaintiff as a, subsequent mortgagee had been impleaded. The mortgagor, in executing the third mortgage in favour of the defendant, had left Rs. 4,000 in the hands of the mortgagee for discharging one of the decrees and took Rs. 5,237 himself in order to pay off the other decrees, which he did. The defendant accordingly claimed that he should be given priority over the second mortgagee on account of the discharge-of the earlier mortgages of 1909 and 1918. The learned Subordinate Judge-has overruled this plea on four grounds.

(1) That there was no evidence that the previous mortgage debt was to be kept alive for the benefit of the subsequent mortgagee as against the mortgagor.