JUDGMENT Niamatullah, J.
1. This second appeal has arisen out of a suit brought by the plaintiff-respondent for recovery of possession of certain properties, specified at the foot of the plaint. The first Court dismissed the suit but the lower appellate Court decreed the plaintiff's claim in full. Some of the defendants have appealed to this Court.
2. The facts of the case are no longer in controversy. The property in dispute belonged to one Chiranji and Mt. Dharman, who executed a deed of simple mortgage in favour of the plaintiff's predecessor-in-interest (hereinafter referred to as plaintiff). The defendant-appellants' predecessor-in-title (hereinafter referred to as defendant) held a simple money-decree against the aforesaid mortgagors and had the mortgaged property now in suit attached in execution of their decree shortly before the mortgagee instituted his suit for sale on foot of his mortgage. The sale in execution of the simple money-decree in favour of the defendants was not made till after the institution of such suit. The holder of the simple money-decree himself purchased at the auction and obtained possession of the property now in dispute. Subsequently a decree for sale was passed in favour of the plaintiff. The mortgaged property (the property now in dispute) was sold and purchased by the mortgagee himself who took out formal delivery of possession but was opposed in the Revenue Court on applying for mutation of names by the defendant who had purchased it in execution of a simple money-decree. Mutation of names was refused to the plaintiff. Accordingly he brought the suit which has given rise to this appeal for recovery of possession.
3. The only defence which it is necessary to mention for the purposes of this appeal was that the plaintiff is not entitled in any case, to an unconditional decree that the defendant-appellants are entitled to redeem and that only on their failure to exercise such right of redemption should the plaintiff be given a decree for possession. The learned District Judge overruled this defence. The only question argued in second appeal is that the defendant being an attaching creditor had a right to redeem the mortgage in favour of the plaintiff, that the defendant should have been made a party to the plaintiff's suit on foot of the mortgage and that he not having been impleaded and afforded an opportunity to exercise his right of redemption is entitled to redeem now. Subject to the defendant's right of redemption, the plaintiff's right to possession has not been disputed by the learned Counsel for the appellant. The auction sale at which the defendant purchased the property in dispute in execution of his simple money-decree took place during the pendency of the plaintiff's suit on foot of his mortgage. Thus the defendant's right under the auction sale was affected by the rule of lis pendens and was therefore subject to the plaintiff's right under the decree for sale. In this view the plaintiff's right to possession subject to the defendant's right to re-'deem, if he has any cannot be disputed.
4. The important question for determination is whether the defendant has a right of redemption on the facts already stated. There can be no doubt that under Section 91(f), T.P. Act, as it stood before the amendment of 1929, an attaching creditor among others has a right to redeem the property under attachment. Under Order 34, Rule 1, Civil P.C., all persons having a right to redeem should be made parties to a suit brought by a mortgagee for sale of the mortgaged property. It follows that the defendant had a right to redeem the mortgage in favour of the plaintiff and if that he should have been made a party to the plaintiff's suit on his mortgage.
5. The next question is whether the defendant not having been made a party can now exercise the right of redemption which he undoubtedly had when the mortgagee's suit was brought. The learned District Judge has held that an attaching creditor such as the defendant was, has a right to redeem but such right is extinguished when a sale in pursuance of the attachment takes place. According to this view the defendant lost his right of redemption when he purchased the property during the pendency of the plaintiff's suit. There can be no doubt that this view makes the attaching creditor's right of redemption in a large number of cases, liable to be defeated with impunity by a mortgagee, because if the attaching creditor is not made a party and the property is allowed to be sold in execution of the simple money-decree, the sale itself, being pendente lite can give no right to the auction-purchaser against, the auction-purchaser in the mortgagee's suit and the right of redemption is ex hypothesi lost in consequence of such auction sale. The logical result of the view taken by the learned District Judge may be as stated above but the same view bas been taken in a Full Bench case decided by the Madras High Court in Subramania Chettiar v. Sinnammal A.I.R. 1930 Mad. 801, which merely gives effect to two earlier cases of that Court, namely, Veyindramuthu Filial v. Maya Nadan [1920] 43 Mad. 696 and Chamiyappa Tharagan v. Rama Ayyar A.I.R. 1921 Mad. 30. On the other hand a contrary view has taken by this Court in Ghulam Husain v. Dina Nath [1901] 23 All. 467 and Ham Prasad v. Bhikari Das [1904] 26 All. 646. Both these cases appear to be on all fours with the present one though the head-note of the second case is misleading and shows that the sale in execution of the simple money-decree had taken place before the institution of the mortgage suit. This however is not correct and as would appear from the body of the judgment such sale was held during the pendency of the mortgage suit. In both of these cases the right of the attaching creditor to redeem the mortgage was deemed subsisting after the sale in execution of the simple money decree and when there was a conflict between the auction-purchaser in the mortgage suit and the auction-purchaser in execution of the simple money-decree both claiming the right to possession of the property. It was clearly held that the auction-purchaser in execution of the simple money-decree could redeem. The ratio decidendi adopted in both of them is well stated in Bam Prasad v. Bhikari Das [1904] 26 All. 646 at p. 467 in the following dictum:
The respondents (auction-purchasers in the simple money-decree) are entitled to redeem. But they are not entitled to anything further by reason of the fact that to plaintiff in that suit omitted to implead them as defendants. The omission to implead them can neither improve their position nor the reverse. The plaintiff-appellant who purchased the property at a Court sale in a suit in which the mortgagee Nath Mai was the plaintiff and the mortgagor was the defendant purchased the property, that is, whatever rights the mortgagor and mortgages then possessed subject to the infirmity that the present respondents had not been impleaded and consequently he must suffer by reason of the neglect of the plaintiff to implead the, respondents. He did not get a clear title to the property but he got all the title which Nath Mal and the mortgagor could give and that was a title subject to the equity which the respondents had of redeeming Nath Mal's mortgage and preserving the property for themselves. That right will still be secured to them.
6. The case of Ghulam Husain v. Dina Nath [1901] 23 All. 467 was followed in Venkata Seetharamyya v. Venkataramyya [1913] 37 Mad. 418, which was disapproved in Paramesivara Aiyar v. Land Acquisition Collector, Palghat [1919] 42 Mad. 231. To that extent there is difference of opinion among the learned Judges of the Madras High Court on this point. We are bound to follow the rulings of this Court which were not referred to before the learned District Judge; otherwise we have no doubt his decision would have been different.
7. The result is that the plaintiff-respondent is entitled to possession of the property in dispute as against the defendant-appellants. This right however is so far qualified that the defendants are entitled to be placed in the position they would have been in if they had been impleaded by the plaintiff in the mortgage suit that is, they would have had a right to redeem within the period of six months fixed by the preliminary decree. The proper order in this case therefore is that the defendants should be given the opportunity to redeem the mortgage within six months from the date on which the Court of first instance will declare the amount duo to the plaintiff on his mortgage which the defendants must pay if they desire to redeem and if they fail to redeem within such time the plaintiff shall be entitled to recover possession of the property in dispute. If they redeem within that period the plaintiff's suit shall stand dismissed. Accordingly we allow this appeal, set aside the decree of the lower appellate Court and also that of the Court of first instance, which dismissed the plaintiff's suit in toto and pass a decree in favour of the plaintiff-respondent in the above terms. Our decree should be considered to be a preliminary decree. We remand the case to the Court of first instance to ascertain and declare the amount payable by the defendants for redemption of the mortgage in question and to pass a final decree dismissing or decreeing the plaintiff's suit according as the defendants redeem or fail to redeem by payment of the amount declared by the Court within the period of six months as already stated. The costs here and hitherto incurred by the parties shall abide the result to be embodied in the final decree which the Court of first instance will eventually pass.