JUDGMENT Banerji, J.
1. This is a plaintiff's appeal. The plaintiff Makhan Lal was in possession of certain land under a usufructuary mortgage, having acquired by purchase the rights of the original usufructuary mortgagees. The defendants obtained a mortgage on 14th July 1925, of the right, title, and interest of one Tika. Tika on 18th December 1909, mortgaged the property to Makhan Lal. Suits were brought on the two mortgages. On 5th August 1919, the prior mortgagee instituted a suit for sale (No. 480 of 1919) without impleading the 'puisne mortgagee. A preliminary decree was passed which was followed by a decree absolute and the property was sold by auction and purchased by the prior mortgagees. The plaintiff in the year 1921 instituted a suit (No. 1250 of 1921) for sale on his mortgage of 18th December 1909, and obtained a decree. He did not implead the prior mortgagee. When the plaintiff went to the revenue Court to get his name recorded as owner of the property his application was dismissed on the ground that an order of mutation has already been passed in favour of the defendants prior mortgagees.
2. The present suit is for the following relief:
On the establishment of the plaintiff's right and on declaration that no right has accrued to the defendants as against the plaintiff in respect of the right as a mortgagor of 9.20 acres out of 26.18 acres of land entered in the khewat as holding No, 10 and of 3,10 acres out of 10,74 acres entered in the khewat as holding No. 11 situate in mauza Bhura Sani mahal Ghair Khwahindgan former pargana Mahaban, and recent pargana Mat, district Muttra, the plaintiff may be awarded possession over the said property.
3. It is not denied that the usufructuary mortgage still subsists and that the plaintiff is in possession as usufructuary mortgagee of the property. Various defences were raised which have been repelled by the Court of first instance, but the plaintiff's claim was decreed subject to his paying Rs. 1850-7-4, the amount of the principal and interest under the mortgage of 14th July 1925. The plaintiff went up in appeal and the appeal was dismissed by the learned Additional Subordinate Judge. There was a cross-appeal by the defendants but that appeal was also dismissed.
4. The plaintiff has come up in second appeal. The learned advocate for the appellant has contended that, although he cannot assail the condition imposed by the Courts below, the appellant is entitled to recover possession of the property upon payment of the amount which was decreed in suit No. 480 of 1919. Various cases have been referred in the arguments before us. The contention of Mr. Narain Prasad Asthana is that he by reason of a deliberate act of the prior mortgagees cannot be forced to pay more than he would have been directed to pay if he had been made a party to the suit No. 480 of 1929.
5. On the other hand, Mr. A.P. Dube, holding the brief of Mr. P.L. Banerji has drawn our attention to the case of Ganga Prasad Sahu v. Land Mortgage Bank [1894] 21 Cal. 366, the case of Jageshwar Mandal v. Sridhar Lal Deb A.I.R. 1928 Pat. 589 and also the case of Raghunath Kunwar v. Shankar Singh [1914] 36 All. 123.
6. In our opinion the respondent is not entitled when the present suit is instituted to claim to be put into a much, better position than he would have been if the present plaintiff had been impleaded in suit No. 480 of 1919. The plaintiff appellant was a usufructuary mortgagee and, as we have stated, it is not denied that he was in possession. The prior mortgagees therefore cannot claim to have any excuse whatsoever for not impleading the present plaintiff. It is contended by Mr. Dube that as his clients were not in possession of the property he is entitled to hold the mortgage as a shield, not the decree. We agree with that contention. In the case of Sukhi v. Ghulam Safdar Khan A.I.R. 1922 P.C. 11 at p. 476 (of 34 All.) their Lordships of the Privy Council have observed as follows:
The general principle is stated rightly by she High Court. It is this. The plaintiff is a puisne mortgagee seeking to enforce her mortgage, the prior mortgagee in his suit having failed to make her a party. It is the duty of She Court to give the plaintiff the opportunity of occupying the position which she would have occupied if she had been a party to the former suit.
7. We have therefore to see what is the proper decree to be passed in this case in our opinion the proper decree to be passed in this ease is to place the prior mortgagee exactly in the same position that he would have been in if he had impleaded the present plaintiff. We therefore vary the decree of the Court below by declaring that the plaintiff is entitled to possession upon payment of the amount which was decreed as due to the prior mortgagees in suit No. 480 of 1919. As the plaintiff was in possession as usufructuary mortgagee the prior mortgagees are entitled to interest at the rate decreed in suit No. 480 of 1919 up to the date we fix for payment of that amount. The amount will be calculated by the office and three months are allowed to the appellant to pay the amount. If such payment is not made the plaintiff's suit will stand dismissed with costs. Appellant will be entitled to the costs of this appeal. We do not interfere in any way with the order as to costs passed by the Courts below.