JUDGMENT

Sir John Edge, Kt., C.J. - This is a Second Appeal, and is brought by the plaintiff in the suit from the decree of the late District Judge of Gorakhpur of the 30th of May 1888, which dismissed the plaintiff's appeal below, and confirmed the decree of the Subordinate Judge of Gorakhpur dismissing the plaintiff's suit so far as it related to his prayer for a decree for sale of a 4-anna share in mauza Barwa Kutwa in enforcement of an hypothecation lien. On the 10th of September 1882, two brothers, named Kazim Hasan and Nadir Hasan, in consideration of Rs. 2,901 advanced to them by Hari Prasad, one of the defendants-respondents before us, executed a simple mortgage in his favor, and thereby hypothecated an 8-anna share in mauza Barwa Kutwa and a 5-anna share in mauza Biswa Kutiya.

2. On the 23rd of February 1884, Hari Prasad advanced a further sum of Rs. 2,799 to Kazim Hasan and Nadir Hasan, and in consideration of that advance they on that date executed a simple mortgage in favor of Hari Prasad, by which they hypothecated the same 8-annas share in mauza Barwa Kotwa and 4 annas of the 5-annas share of Biswa Kutiya hypothecated by the deed of the 10th of September 1882, and in addition certain shaves in Mauzas Captainganj, Rudhauli, Jamgal, Banki, Purasrampur and Bharpurwa.

3. On the 6th of August 1885, Kazim Hasan borrowed Rs. 1,000 from Mata Din Kasodhan, who is the plaintiff-appellant, and on that day, and in consideration of that advance, Kazim Hasan executed in favor of the plaintiff-appellant a simple mortgage, hypothecating his 4 annas of the 8 annas of Barwa Kutwa, 2 annas of Biswa Kutiya, and some small shares in Captainganj and Bharpurwa.

4. On the 12th of August 1885, Nadir Hasan borrowed Rs. 1,999 from Hari Prasad, and in consideration of that advance executed on that date a deed in favor of Hari Prasad, by which he hypothecated his 4 annas of the 8-annas share in Barwa Kutwa, and 2-annas share in Biswa Kutiya, and certain shares in Captainganj and Bharpurwa.

5. On the 21st of August 1885, Kazim Hasan borrowed Rs. 999 from Mata Prasad, and in consideration of that advance executed a simple mortgage in favor of Mata Prasad, by which he hypothecated his 4 annas of the 8-annas share in Barwa Kutwa, 2 annas in Biswa Kutiya and certain shares in Captainganj and Bharpurwa.

6. On the 20th of September 1886 Kazim Hasan and Nadir Hasan, by a sale-deed of that date, sold to Hari Prasad the 8-annas share in mauza Barwa Kutwa for Rs. 14,530, and with that sum Hari Prasad's mortgages of the 10th of September 1882, the 23rd of February 1884, and the 12th of August 1885, were paid off. It was to pay off those mortgages that the sale of the 20th of September 1886 was was made.

7. On the 8th of January 1887, Mata Din brought his suit in the Court of the Subordinate Judge of Gorakhpur against Kazim Hasan and Hari Prasad. So far as is material for the consideration of this appeal, he sought by his suit a decree setting aside the sale-deed of the 20th of September 1886, and decreeing a sale of the 4-annas share in Barwa Kutwa in enforcement of his lieu under the deed of the 6th of August 1885.

8. The plaintiff did not ask for redemption of the mortgages of the 10th of September 1882 and the 23rd of February 1884, nor did he seek foreclosure of the mortgage of the 21st of August 1885.

9. Kazim Hasan did not defend the suit. Mata Prasad was not made a party to the suit.

10. The Subordinate Judge dismissed Mata Din's claim to have the sale-deed of the 20th of September 1886 set aside, and to have the 4-annas share in Barwa Kutwa brought to sale.

11. Mata Din appealed. The District Judge on appeal found that Hari Prasad, when he purchased on the 20th of September 1886, intended to keep alive as shields for his protection the securities of the 10th of September 1882 and the 23rd of February 1884.

12. The District Judge also found that Mata Din had never tendered payment to Hari Prasad of the amount which had been due under Hari Prasad's prior incu