JUDGMENT

Tek Chand, J. - The facts of the litigation which has given rise to this second appeal, are somewhat complicated and must be set out in some detail. One Harsu Ram was he owner of two shops which may be described as A and B. On 9th December 1911, he executed an unregistered deed of mortgage for Rs. 99 in respect of shop A in favour of Harjas Ram and Surta Ram. The mortgage was without possession and was to carry interest and compound interest at Re. 1 per cent per mensem. On 5th July 1912, Harsu Ram, mortgagor, executed a registered deed of mortgage in favour of one Tara Chand in respect of the shop A and one-half of the shop B. This mortgage was also without possession and was to carry interest at Re. 0-11-6 per cent. per mensem.

2. On 6th July 1918, Tara Chand, the mortgagee under the second mortgage dated 5th July 1912, instituted a suit against Harsu Ram, mortgagor for recovery of Rs. 926-8-0, the amount due to him on foot of the mortgage. In this suit he did not implead Harjas Ram and Surta Ram, the mortgagees under the first deed. On 27th November 1919 a preliminary decree was passed in favour of Tara Chand for Rs. 695 payable in two months and it was ordered that on failure of the mortgagor to pay the aforesaid sum within the specified period both the mortgaged properties A and one-half of B should be sold. Nothing having been paid Tara Chand, mortgagee decree-holder, applied for the final decree being passed in his favour and this was done on 14th July 1921. As already pointed out Harjas Ram and Surta Ram, the mortgagees under the unregistered deed of 9th December 1911, were not parties to these proceedings.

3. A few months later but before Tara Chand, decree-holder had taken any steps to bring these properties to sale Harjas Ram and Surta Ram, the mortgagees under the first deed of mortgage dated 9th December 1911, instituted a suit against Harsu Ram, mortgagor, for recovery of Rs. 320 due to them on foot of the aforesaid mortgage. To this suit Tara Chand, the puisne mortgagee, was made a party. He, however, did not file any written statement. A preliminary decree in favour of Harjas Ram and Surta Ram was passed on 23rd May 1922. Nothing having been paid within the prescribed period proceedings were taken by Harjas Ram and Surta Ram to have this decree made final and Tara Chand was made a party to these proceedings also. This time he appeared and filed an application on 26th March 1923, urging that the unregistered mortgage-deed set up by Harjas Ram and Surta Ram was fictitious and was not binding on him. He did not, however, pursue this application, and on 7th April 1923, a final decree was passed in favour of Harjas Ram and Surta Ram for recovery of Rs. 320 plus costs recoverable by sale of shop A. In the meantime Tara Chand who had, as already stated, obtained a final decree in his favour on 14th July 1921, for sale of properties A and one-half of B., took out proceedings to sell these properties. The sale was accordingly held on 21st April 1923, when both properties A and one-half of B were purchased by Ramji Das and Wishan Das. This sale was confirmed on 28th April 1924, and the purchasers, having obtained a sale-certificate on 8th May 1924, were put in possession of both the shops.

4. Harjas Ram and Surta Ram who had obtained a final decree for sale of property A on 7th April 1923, started proceedings to sell it. This sale was held on 12th December 1924, and the property A was sold to Harjas Ram and Surta Ram, the decree-holders, themselves. The sale was confirmed on 16th January 1925 and a sale-certificate granted on 23rd January 1925. Thereupon the purchasers Harjas Ram and Surta Ram tried to obtain possession of this shop A, but they were resisted by Ramji Das and Wishan Das, purchasers under the sale of 28th April 1924, who, as stated above, had already obtained possession. On 7th May 1926, the plaintiffs Harjas Ram and Surta Ram accordingly instituted the suit out of which this second appeal has arisen,