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Judgment
The respondent, plaintiff, seeks to enforce a mortgage executed in his favour on the 15th December 1891. The sum of Rs 1,150 part of the sum
advanced by him was, it is found, advanced and actually paid for the amount due under a decree dated the 20th March 1890, obtained by one
Subba Reddi on a mortgage in his favour executed in the year 1887. The appellant was the holder of an intermediate incumbrance, dated the 4th
February 1890 upon which also a decree was obtained on the 4th November 1890. Prior to the date of the respondent''s mortgage, there were,
therefore, two mortgage decrees in existence, the earlier one in favour of Subba Reddi, the later in favour of the appellant. It is found as a fact that
the respondent, when advancing Rs. 1,150 for the discharge of the earlier decree, intended to keep aiive the prior incumbrance, and it has been
held that he is to that extent entitled to priority as against the appellant whose incumbrance is intermediate in point of time.
On the hearing of the appeal, it was argued before us that inasmuch as Subba Reddi''s mortgage had become merged in the decree passed upon
it and that decree had been satisfied, the intention of keeping it alive for his own benefit could not properly be imputed to the respondent.
Notwithstanding the opinion to the cantrary expressed in the unreported case Subbaraya Cheety v. Ganga Razulungaru 7 M.L.J. 18 we are of
opinion that the principle on which the respondent bases his claim to priority is not affected by the circumstance that the money advanced by him
was advanced in order to pay off a mortgage debt due under a decree. It is sufficient for the respondent to show that there was a subsisting prior
incumbrance, that his money was lent for the purpose of discharging it and that it was for his benefit that the prior incumbrance should still be kept
alive. It cannot be said that he had any the less a right to keep the incumbrance alive, because it had taken the form of a decree. Toe same thing
had happened in the case of Adams v. Angell 5 Ch. D. 698 . Nor can it be said in the present case that the respondent did any thing which could
seem to negative an intention on his part to adopt the course which it was obviously for his benefit to adopt.
The appeal is dismissed with costs.