The facts of the case are sufficiently set forth in the judgment of the High Court (1) which was delivered by GARTH, C.J.:— 1878 KALI PROSONNO GHOSE v. KAMINI CHOWDRAIN. These appeals have been argued together, and we think it right, SOONDERY under the circumstances, to dispose of them in one and the same judgment. Judgment. On the 26th March 1872, the defendant, Srimoti Kamini Garth, C.J. Soondery Dassee, borrowed Rs. 12,000 from Grish Chunder Banerjee, and to secure that sum and interest she mortgaged to him by way of conditional sale, a half share in five different properties-Kachiara, Atghara, Dariapur, Chupra and Alumpur. The loan was re-payable with interest at four per cent. per mensem within one month from the date of the mortgage. On the 9th of May 1872, (the first mortgage being unpaid), the defendant, in consideration of a further loan of Rs. 24,000, gave Grish Chunder another mortgage by way of conditional sale of the same five properties as were mortgaged by the former deed, and also of three other properties, Hidgli, Turruf Ranaghat, and Dihi Santa. This sum of Rs. 24,000 was to be re-paid, with interest at Rs. 2-4 per mensem, on the 9th of May 1873; and the deed provided that the mortgagee was to have his remedy, either by foreclosure or sale of the mortgaged properties, or by suit against the mortgagor for the mortgage money and interest. On the 29th of July 1873, no part of the above mortgage debts having been paid, Grish Chunder gave to the defendant the usual notice to foreclose the properties mortgaged by the first deed. On the 23rd of March 1874, the defendant's half share in Alumpur was sold for arrears of revenue, and the plaintiff, Kali Prosonno Ghose, became the purchaser, subject to the mortgages then existing upon the property. As Alumpur was by far the most valuable of all the mortgaged properties, and as, by the pending foreclosure proceedings, the plaintiff's interest in it was in jeopardy, (his purchase of it having been made subject to the mortgages,) he arranged with (1). GARTH, C.J., and McDONELL, J. VOL. III. 24 1878 KALI PROSONNO GHOSE V. KAMINI Grish Chunder Banerjee to purchase from him his entire interest in the two mortgages, for the amount of principal and interest then due, and a bonus of Rs. 10,000 in addition. Accordingly, on the 3rd of June 1874, an assignment was made by Grish SOONDERY Chunder of the mortgaged properties to Bhogoban Chunder CHOWDRAIN. Mitter, (the plaintiff No. 2,) as trustee for the plaintiff No. 1, Judgment. Kali Prosonno Ghose; the assignment being expressedly thus GARTH, C.J. made to a trustee to prevent a merger of the mortgagor's interest in that of the mortgagee, as regards the estate of Alumpur. Of the five properties which were mortgaged by the first deed, Chupra has been sold on account of a prior mortgage debt; and it is admitted that this property is not available under either mortgage. On the 28th of April 1875, the plaintiff brought the first of these suits, (making his trustee Bhogoban Chunder Mitter a co-plaintiff,) for the purpose of obtaining possession of the three properties, Kachiara, Atghara, and Dariapur, (mortgaged by the first deed,) by force of the foreclosure proceedings; and also to obtain a declaration that he (the plaintiff) was entitled, by virtue of his purchase, as well as of the foreclosure proceedings, to a proprietory right in Alumpur. In this suit, the Subordinate Judge held that, as the plaintiff had purchased the mortgagor's interest in Alumpur, and the mortgagee's interest in the whole of the mortgaged properties, he had become both the payer and receiver of the mortgage debts, and that, consequently, those debts and the remedies for them had become extinguished; and he considered that, looking to the real substance of the transaction, the fact of the plaintiff having taken the assignment of the mortgage in the name of a trustee, (although he did so expressly to avoid the merger,) made no difference in his legal position. He accordingly dismissed the plaintiff's suit. Meanwhile, on the 7th of February 1876, the other suit had been brought by the same plaintiffs against the same defendant, to recover the amount of the mortgage debt aud interest due under the second mortgage. This suit was heard by the same Subordinate Judge, and was dismissed upon two grounds: first, that by purchasing Alumpur the mortgage debt had become extinguished; and, secondly, that notwithstanding the terms of the mortgage deed, the plaintiffs could have no personal remedy against the defendant for the debt until all his remedies against the property had been exhausted. 1878 KALI PROSONNO GHOSE v. ΚΑΜΙΝΙ CHOWDRAIN. We consider that the view which the lower Court has taken of these cases is not altogether correct. In the first place, the SOONDERY Subordinate Judge was wrong in supposing that by taking an assignment of the mortgages bona fide in the name of a trustee, Judgment. the plaintiff could not prevent the merger of the mortgagor's and GARTH, C.J. mortgagée's interest, and consequently the extinguishment of the mortgage debt. The assignment was taken in the trustee's name, expressly for the purpose of preventing the merger, and keeping alive the two estates; and there is ample authority that this object may properly and legally be carried out by means of an assignment of this nature. (See Watts vs. Symes, 1 De Gex., M. and G., 240; and Adams vs. Angell, 5 Ch. D., 634.) The real objection to these suits, in an equitable point of view, appears to us to be this: That the plaintiff, who is the beneficial owner of Alampur, subject to the mortgages, and, as such, liable, conjointly with the owners of the other mortgaged properties, to pay his portion of the entire mortgage debts, has attempted to foreclose Alumpur and the other properties comprised in the first mortgage, for a part only of the mortgage debts, (that part which was due under the first mortgage,) and has then sued the defendant personally for the remainder, to the payment of which he himself, as the owner of Alumpur, is bound to contribute. We have great doubt whether under such circumstances he had any right to foreclose at all under the first mortgage. Grish Chunder, the original mortgagee, had, by accepting the second conditional sale of the properties, consented to charge them with an additional mortgage debt, and having done so, it appears to us that it would have been inequitable on his part to foreclose the property under the first mortgage, and so deprive the defendant of that which both parties had agreed to look to as the primary means of satisfying the sum due upon the second mortgage. But even assuming, for the sake of argument, that the plaintiff could thus have foreclosed under the first mortgage, it is clear that he had no right (being himself the beneficial owner of Alumpur, aud as such liable to contribute proportionately to the 1878 payment of both mortgages) to foreclose the first mortgage in. order to satisfy the debt due under that, and then to sue the defendant personally for the debt due upon the second mortgage, as though that debt were not a charge upon the mortgaged proSOONDERY perty at all and he himself were not liable for his proportion CHOWDRAIN. of it. KALI PROSONNO GHOSE v. ΚΑΜΙΝΙ Judgment. Even assuming that he could have foreclosed the first mortGARTH, C.J. gage, which we much doubt, we are clearly of opinion that he had no right to bring the second suit; and that the bringing of that suit had the effect (by analogy to the English rule of equity in such cases) of re-opening the foreclosure, or preventing the foreclosure proceedings being confirmed or sanctioned by this Court, and of enabling us to make a decree which will at once secure to the plaintiff his just rights, and at the same time oblige him to do equity as regards the defendant. (See 2 Fisher on Mortgages, pp. 1054 to 1059, and cases there cited., We think, therefore, that under the circumstances the proper decree in both suits will be: That the first suit be dismissed, except as regards Alumpur; and that the plaintiff's right to Alumpur be decreed, the plaintiff No. 1 and the defendant being subjected to the following conditions :— 1st. That as between the plaintiff No. 1, and the defendant, the properties mortgaged by both deeds (except Chupra) be valued by the lower Court. 2nd. That the debt secured by the first mortgage be borne by the plaintiff No. 1 and the defendant, in the proportion of the aggregate values of the properties Kachiara, Atghara and Dariapur to the value of Alumpur. 3rd. That the debt secured by the second mortgage be borne by the plaintiff No. 1 and the defendant in the proportion of the aggregate values of all the properties mortgaged by the deed (except Chupra) to the value of Alumpur. ́ 4th. That the defendant be at liberty to redeem all the properties, except Alumpur, upon re-paying the proportion of the mortgage debts and interest due from her, corresponding with the proportionate value of the other mortgaged properties to Alumpur, until fresh proceedings for foreclosure or for sale of the mortgaged properties (except Alumpur) shall have been taken in due course by the plaintiff. 5th. That until the mortgage debts and interests shall be fully satisfied, the said mortgaged properties in the hands of the defendant shall be considered as charged with the proportion of the mortgage debts, which she is hereby declared liable to pay. 6th.-That each of the parties do bear and pay his and her own costs of the first of these suits, and that the costs of the second suit in both Courts be paid by the plaintiff No. 1. [CIVIL APPELLATE JURISDICTION.] 1878 KALI PROSONNO GHOSE v. ΚΑΜΙΝΙ SOONDERY CHOWDRAIN. Judgment. ARTH, C.J. KUNWAR DOWLUT RAM AND ANOTHER. DECREE-HOLDERS. Limitation-Execution of Decree-Attachment and Sale-Act VIII (B.C.) of 1869, section 58. A decree in a suit instituted under Act VIII (B.C.) of 1869, was passed on the 13th of March 1873. Application for execution was made on the 18th of February 1876, but no process of attachment or sale was issued until the 2nd of April 1876. Held, that the attachment was valid, and not void as barred by limitation, under section 58, Act VIII (B.C.) of 1869. Heera Lall Seal vs. Poran Matteah, 6 W. R., (Act X), 84; Rhedoy Krishna Ghose vs. Koylash Ohunder Bose, 13 W. R., 3 F. B.; and Lalia Ram Sahoy vs. Dodraj Mahto, 20 W. R., 395, cited. SPECIAL APPEAL from an order passed by the Officiating Additional Subordinate Judge of Gya, reversing that of the Baboo Kashee Kant Sen, for Appellant. The Respondent did not appear. The judgment of the High Court (1) was delivered by AINSLIE, J. :— This is an appeal from an order of the Subordinate Judge of (1) AINSLIE and BROUGHTON, J.J. No. 59 of 1878. AINSLIE, J. |