JUDGMENT

Henry Richards, C.J. - The facts connected with this appeal are stated in my judgment delivered on the 1st of August 1916 and it is unnecessary to repeat them. It may, however, be well to summarise the result of the findings of the Court below upon the issues referred in conjunction with the statements made by the learned Counsel upon each side as to the mortgages. It appears that the principal property mortgaged in the mortgage of the 11th of July 1893 was a one third share in a certain Khata. The property hypothecated in the mortgage of the 29th of November 1893 was practically the same. In the mortgage of the 21st of August 1894 the same share in this Khata was mortgaged, and there was some additional property. In the mortgage of the 17th of May 1904 one sixth of this Khata (instead of one-third) is mortgaged and some additional property as well. The plaintiffs obtained a decree on foot of the mortgage of the 29th of November 1893, where by they were ordered to redeem the mortgage of the 11th of July 1893 when they would be entitled to sell the property for the aggregate amount of these two mortgages. That decree duly was made absolute and was put into execution and the greater part of the mortgage debt was realised, leaving only a balance of Rs. 156. The property was, however, never brought to sale. The mortgage on foot of which the present suit is based is the mortgage of the 17th of May 1904. The consideration for that mortgage was the Rs. 156 which still remained unpaid on foot of the mortgage decree which the plaintiffs obtained on their previous mortgage plus an additional sum of Rs. 94. The question which the plaintiff sought to have decided in his favour as against the appellant here was that he should obtain priority in respect of this Rs. 156 against the defendant appellant and that he should be at liberty to sell a one-fourth share which the appellant had purchased to realise this Rs. 153 and interest. The circumstances under which the 1/4th share was purchased are as follows: Amolak (the father of the appellant) obtained a decree on foot of the mortgage of the 21st of August (sic) The property was put up to sale and the defendant purchased one-fourth of the Khata (No 27), being the Khata which is common to all four mortgages. Reading the mortgage of the 17th of May 1904 it is abundantly clear that it was intended that this mortgage should discharge and he in satisfaction of the decree. On the face of it it is stated that the decree is discharged. On a previous occasion when the case was before the Court, it was stated that the decree had been certified as discharged. Whether this was actually done or not, it is clear that in 1904 after the mortgage was executed it was never intended that the decree should be further executed and if the decree was not certified as satisfied, it should have been so certified. If it was necessary, I should hold that under the circumstances of the present case no presumption arises that the plaintiff intended to keep alive either the mortgage of the 11th of July 1893 or the mortgage of the 29th of November 1893. I think there is express evidence that the intention was that these mortgages and the decree were to be treated as discharged. It must be admitted that if the plaintiff's claim in the present suit is to date from the 17th of May 1904 when he took the new mortgage, the appellant has priority over him because the plaintiff's purchase and possession must be attributed to the mortgage of the 21st of August 1894. It is said, however, that as against the defendant-appellant the plaintiff has priority to the extent of Rs. 156 and interest as of July and November 1893. This contention is based upon the presumption that because it was for the interest of the plaintiffs to keep alive the securities of 1893 it must be presumed they intended to do so and in fact did so. I have already stated my opinion as to this matter. It seems to me, however, that in any event the two mortgag