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The appellants, Motes, then got the Shukrawar Peth property and the small property in Kalyan sold in execution of the compromise decree. But, as the amount realised by the sale of these properties was not enough to satisfy their claim, the appellants, Motes, filed an execution application Darkhast No. 31 of 1952 in the Court of a Civil Judge at Poona for the recovery of Rs. 1,57,164/-.

The claim of the plaintiff-respondent No. 14 before us (hereinafter called "Oswal") had, meanwhile, come into existence by reason of two duly executed simple mortgages, dated 27-6-49 and 13-9-49, on the strength of which the Original suit No. 57 of 1958, before us in appeal No. 1883 of 1967, for the recovery of Rs. 2,18,564/- by enforcing the two simple mortgages, was filed. Oswal claimed that he had no knowledge of the alleged prior charge of the Motes. The Budhwar Peth property was also sold in proceedings to execute the compromise decree started by the appellants, Motes, by Darkbast No. 31 of 1952 and purchased by Motes themselves. The Execution Court, in proceedings under Order 21, Rule 66, Civil Procedure Code, had dismissed the objection of the plaintiff respondent. Against this dismissal an appeal was filed in the High Court which allowed it. Hence, the Motes died appeal No. 1882 of 1967 in this Court against this dismissal by the common judgment of the High Court deciding tile two appeals before it. The Trial Court dismissed the suit No. 57 of 1958 brought by Oswal. It held that, although, Oswal had no actual or constructive notice of the charge in favour of the appellants, yet the charge had priority over the subsequent mortgages and could be enforced against Oswal the plaintiff- respondent, inasmuch as a simple mortgage with-out Po ion, did not give the mortgagee a right to protection given by the proviso to Section 100 of the Transfer of Prop" Act. (here-inafter referred to as "the Act") against enforcement of a charge upon"any property the hands of a person to whom such property has been for consideration and without notice of the charge".The Trial Court held that the rights of a simple mortgage- are not property in the hands" of the mortgagee who could, therefore, not be protected by the proviso to Section 100 of the Act. On appeal, the High Court of Bombay reversed the decree of the Trial Court and held the subsequent simple mortgages to be protected by the proviso.