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Judgment
The District Judge has found that it is impossible to say whether the mortgage, Exhibit A, relied on by the plaintiff or the mortgage, Exhibit I, relied on by the 8th defendant was executed first. The 8th defendant on 6th June 1911 purchased the equity of redemption in a portion of the mortgaged property, Item No. 3 consisting of 3/10ths of the whole, in part satisfaction of his mortgage debt, the balance of which was otherwise discharged with interest on 30th October 1915.
If the 8th defendant''s mortgage was executed first, he must, on the facts found, be regarded as having intended to keep alive his mortgage rights when he purchased the equity of redemption in Item No. 3.
As the District Judge has found it impossible to decide which of the two mortgages was executed first, it is not open to either of the mortgagees to claim priority over the other and they must rank pari possu as if both mortgages had been executed at the same time. A similar view was taken in Ram Ratan Sahu v. Mohant Sahu 6 C.L.J. 74.
We must, therefore, set aside the decree and remand the appeal suit to the District Court for disposal according to law in the light of the above observations. Costs will abide. Stamp will be refunded.