( 1. ) BY order dated 19th November 1971, this Court, while upholding the claim of the plaintiff, Dhanpal Patni the prior mortgagee, on the foot of the mortgage-deed, Ex. P-2, dated 5th February 1945,- exercised its discretion, under Order 34, rule 4 (3) of the Code of Civil Procedure, and directed that a decree for sale instead of one of foreclosure shall be passed, although the suit brought by the plaintiff was a suit for foreclosure, as it was not disputed that the mortgage was an anomalous mortgage.

( 2. ) IN the suit, the plaintiff had impleaded the subsequent mortgagee, the laxmi Bank Ltd. , Akola, as the defendant No. 5.

( 3. ) THE operative part of the Order, reads-

21. The difficulty arises because the official Liquidator appearing for the subsequent mortgagee, the Laxmi Bank Ltd. , in the cross-objection that he has filed that a decree in form 9 under Order 34, rule 4 (3) of the Code of Civil Procedure be passed.

22 Under Order 34, rule 4 (3) of the Code of Civil Procedure, the Laxmi Bank Ltd. as the subsequent mortgagee is entitled to have its rights under its mortgage adjudicated upon in this suit But, as the issues relating to the subsequent mortgage have not bee