Ramaswami, J.:— In the suit which is the subject matter of this appeal, the plaintiffs claimed that they were entitled to recover a sum of Rs. 5,291/- and odd with interest by sale of the mortgaged properties described in Sch. 2 of the plaint. According to the case of the plaintiffs, the defendants first party had mortgaged the properties mentioned in Sch. 2 of the plaint to Suraj Prasad Sah, defendant fifth party, on 4-10-1926. The due date for payment in this mortgage bond was 16-5-1927.

2. On the basis of this mortgage bond, Suraj Prasad Shah instituted Mortgage Suit No. 15 of 1939 against defendants first to fourth parties on 18-4-1939 for realisation of his dues. On 30-4-1940, Suraj Prasad Sah obtained a preliminary decree for sale, and on 9-12-1941, the preliminary decree was made final. Defendant 14 had purchased a portion of the mortgaged properties in auction sales held on 4-5-1931 and 7-11-1932, and thereafter defendant 14 sold her interest in the mortgaged properties to the plaintiffs by two registered sale deeds both dated 29-12-1943. After obtaining the decree in Mortgage Suit No. 15 of 1939, the defendant fifth party put the decree into execution and in that execution case (Execution Case No. 66 of 1942) the mortgaged properties were auctioned by the Court and Jainarain Prasad, defendant 13, purchased the mortgaged properties. After the sale, the plaintiffs made the deposit of a sum of Rs. 5,291-5-6 which represented the amount for which properties were sold and the statutory compensation under the provisions of O. 21, R. 89 of the CPC.

3. After the deposit was made, the Court set aside the sale of the mortgaged properties. The plaintiffs therefore claimed that by deposit of the decretal amount in Mortgage Suit No. 15 of 1939, they had acquired by subrogation the rights of the prior mortgagee on the basis of the mortgage bond dated 4-10-1926. The plaintiffs prayed that a mortgage decree should be granted for a sum of Rs. 5,291-5-6 together with interest with regard to the property described in Sch. 2 of the plaint.

4. The plaintiffs claimed a total amount of Rs. 6,071-8-6 and prayed that a mortgage decree should be passed. The suit was contested by defendants 11 to 13 on two grounds. It was urged in the first place that the suit was barred by limitation under Article 132 of the Limitation Act, and secondly, that the plaintiffs had not been subrogated to the rights of the prior mortgagee, namely, the defendant fifth party. On both these issues the learned Subordinate Judge decided in favour of the plaintiffs and granted a preliminary mortgage decree for the total amount of Rs. 6,071-8-6 together with interest.

5. An appeal was presented to the High Court on 12-9-1947 on behalf of defendants 11 to 13 against the preliminary decree granted by the Subordinate Judge. There was a discrepancy in the name of appellant 3, who was described as Jainarain Ram in the memorandum of appeal and as Jainarain Prasad defendant 13 in the trial Court decree.

6. On 8-4-1948, there was an order of the Bench that the discrepancy should be reconciled, and as the order was not complied with, the name of appellant 3, namely, defendant 13, stood expunged from the memorandum of appeal.

7. The appeal was heard in the first instance before a Bench consisting of Rai and Choudhary, JJ. A preliminary objection was taken on behalf of the plaintiff respondents that the appeal was incompetent since defendant 13 had been expunged from the category of appellants, and the preliminary decree for sale granted by the lower Court had become final so far as defendant 13 was concerned. It was contended that the remaining appellants, namely defendants 11 and 12, were not entitled to seek relief under the provisions of O. 41, R. 4 of the CPC in the absence of defendant 13 from the records of the appeal.

8. On behalf of the plaintiff respondents reliance was placed upon a decision of the Full Bench of this Court in ‘Ramphal Sahu v. Satdeo Jha’, 1940 Pat 346 (AIR V 27) (A). Rai and Choudhary, JJ. apparently doubted the correctness of the Full Bench decision and observed that a contrary opinion has been apparently expressed in two other decisions of this Court, namely in ‘Radhamohan v. Shreekrishna*’, 1948 Pat 460 (AIR V 35) (B) and in an unreported case of ‘Ajodhya Dutta Missir v. Mt. Mohan Kali Kuer’, 1951 Pat 582 (AIR V 38) (C).

9. The learned Judges constituting the Division Bench, therefore, considered that this conflict of decisions should be resolved by a larger Bench. Another question was also raised on behalf of the appellants, namely, whether the suit of the plaintiffs was barred under Article 132 of the Limitation Act since it was filed more than twelve years after the due date of payment mentioned in the mortgage bond dated 4-10-1926.

10. In support of this view, the appellants strongly relied upon a Division Bench decision of this Court in ‘Sibanand Misra v. Jagmohan Lal’, 1922 Pat 499 (AIR V 9) (D). It was, therefore, contended on behalf of the respondents that the period of limitation would run not from the due date of payment mentioned in the mortgage bond of 4-10-1926, but would run from the date of deposit under O. 21, R. 89 of the CPC, namely from 12-2-1944.

11. In support of this view, the respondents referred to ‘Dulhin Kamlapati Devi v. Jageshwar Dayal’, 1939 Pat 375 (AIR V 26) (E), ‘Babu Lal Ray v. Bindhyachal Rai*’, 1943 Pat 305 (AIR V 30) (F). In view of this conflict of decisions, the learned Judges thought that this question too should be examined by a large Bench.

12. Accordingly, the questions referred to the Full Bench are:

“(1) Has the Appellate Court power to reverse or vary a mortgage decree for sale passed in favour of the plaintiff respondents in absence of any of the defendant whose interest in the mortgaged properties is bound by that decree?

(2) Does the period of limitation for bringing a suit by a person claiming the right of subrogation in accordance with Section 92 of the Transfer of Property Act begin from the due date of payment mentioned in the prior mortgage bond which has been redeemed, or will the period of limitation begin from the date of its redemption or any other date?”

13. Upon the first question, counsel for the respondents put forward the argument that the appeal against the preliminary mortgage decree has abated so far as defendant 13 was concerned, and consequently the whole appeal abated as the mortgage decree was joint and indivisible. Counsel further argued that the provisions of O. 41, R. 4 and R. 33 could not be applied to a case of this description.

14. In support of his argument counsel referred to the decision of the Full Bench in ‘1940 Pat 346 (AIR V 27) (A) and said that the provisions of O. 41, Rr. 4 and 33 do not give the appellate Court power to reverse or modify the trial Court decree in absence of appellant 3 from the record of the appeal. I see no warrant for accepting this submission.

15. In the present case, appellant 3 is not dead; his name was ordered to be expunged from the memorandum of appeal on account of a very technical defect by the peremptory order of the Bench dated 8-4-1948. There is no question of abatement in this case and the decision of the Full Bench in ‘1940 Pat 346 (AIR V 27) (A)’, has no application. The question referred to the Full Bench in ‘1940 Pat 346 (AIR V 27) (A)’, was:

“Has the appellate Court power to proceed with the hearing of an appeal and to reverse or vary the decree in favour of all the plaintiffs or defendants under O. 41, R. 4 of the CPC, if all the plaintiffs or defendants appeal from the decree and one of them dies and no substitution is effected within time and an application for setting aside the abatement, so far as the deceased appellant is concerned, has been refused, always assuming that the decree appealed from proceeded on a ground common to all the plaintiffs or defendants?”

16. This question was answered in the negative by the learned Judges constituting the Full Bench. The basis of the decision was that the order of abatement has the force of a decree against the representatives of the deceased appellant and there is nothing in Or. 41, R. 4 which permits the Court to disturb the finality of the decree as against the deceased appellant. It was further held by the Full Bench that O. 41, R. 4 could not override or create an exception to O. 22, Rr. 3 and 11, and in the case of one or more appellants dying, even where a decree proceeds on a ground common to all, the matter must be governed solely by the provisions of O. 22, Rr. 3 and 11.

17. It is obvious that the Full Bench decision does not apply to the present case, for there is no question of abatement of the appeal under O. 22, Rr. 3 and 11. The name of appellant 3 has simply been expunged from the memorandum of appeal, common to all the three appellants, I see no reason why the provisions of O. 41, R. 4 read with O. 41 R. 33 should not apply to this case.

18. It was, however, objected on behalf of the plaintiff respondents that O. 41, R. 4 and O. 41 R. 33 cannot be applied unless defendant 13 Jainarain Prasad was on the record either as appellant or as respondent. It was contended that the Appellate Court is not competent to reverse or vary the decree in favour of a person who is not impleaded as a party respondent or as a party appellant.

19. The argument was addressed that appellant 3 Jainarain Prasad should have been added as a party respondent to the appeal and the Appellate Court would thereafter be competent to reverse or vary the decree in his favour. The question at issue turns upon the right interpretation of the language used in O. 41, R. 4 and O. 41, R. 33. Order 41, R. 4 provides that

“Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs, or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be”.

20. From this provision of law it is clear that any one of the defendants can appeal from the whole decree if the decree appealed from proceeds on any ground common to all the defendants and thereupon the Appellate Court can vary the decree in favour of all the defendants. The rule, however, is not clear on the question whether the other defendants and plaintiffs who have not appealed should be made party respondents to the appeal, but O. 41, R. 33 states:

“The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or ‘parties’, although such respondents ‘or parties’ may not have filed any appeal or objection.”

21. If O. 41, R. 4 is read along with O. 41, R. 33, it is clear that if one of the defendants prefers an appeal and the appeal proceeds on a ground common to all the defendants, the Appellate Court is competent to pass such decree as the case may require and this power may be exercised in favour of all or any of the respondents ‘or parties’, though such respondents or ‘parties’ may not have filed any appeal.

22. It is clear from the language of O. 41, R. 33 that the exercise of this power by the Appellate Court is not confined only to the case of respondents who are parties to the appeal, but the power can be exercised in favour of persons who are parties to the suit. If O. 41, R. 4 and O. 41, R. 33 are read together, there can be no doubt that one of the defendants can file an appeal without impleading the other defendants as respondents, and if the appeal proceeds on a ground common to all the defendants, the Appellate Court may exercise the power of varying the decree in favour of the non-appealing defendants, though they have not been made parties to the appeal.

23. The effect of these two rules, therefore, is that the Appellate Court is authorised to pass a decree ‘in favour’ of a party who has not been heard, but the Appellate Court is not authorised to pass a decree ‘against’ a person who is not a party to the appeal. It clear that the wide powers conferred on the Appellate Court by O. 41, Rr. 4 and 33 cannot be exercised to the prejudice of a person who has not been given a hearing.

24. But a party who has been heard in appeal cannot object to a decree being passed in favour of a person merely because that person is not a party to the appeal and has not been heard. Such an interpretation does not obviously violate any principle of abstract justice. A similar view as to the scope of O. 41, Rr. 4 and 33 has been expressed by a Division Bench of this Court in ‘1948 Pat 460 (AIR V 35) (B)’. There are other authorities to the same effect — ‘Kamalakanta Debnath v. Tamijaddin’, 1935 Cal 24 (AIR V 22) (G), ‘Dasarthi Patel v. Brojo Mohon Gaontia’, 18 Cal LJ 621 (H) and ‘Gurunath Khandappagouda v. Venktesh Lingo’, 1937 Bom 101 (AIR V 24) (I).

25. Upon the first question, therefore, I hold that the Appellate Court has power under the provisions of O. 41, R. 4 read with O. 41, R. 33 to vary or reverse the mortgage decrees granted by the Subordinate Judge in favour of defendant 13 who is not impleaded either as a party appellant or as a party respondent. Whether in this particular case the High Court should actually exercise its power under O. 41, R. 4 read with O. 41, R. 33 in favour of defendant 13 is a matter for the First Appeal Bench to decide after the case goes back to them.

26. In the course of argument there was much discussion as to the correctness of the decision of the Full Bench in ‘1940 Pat 346 (AIR V 27) (A)’. It was pointed out by Mr. B.C De on behalf of the appellants that this decision was doubted by Meredith J. in 1948 Pat 460 (AIR V 35) (B) ‘At p. 463’, Meredith, J. observed:

“Before I conclude I would like to express my personal opinion that 1940 Pat 346 (AIR V 27) (A)’, may upon a proper occasion need reconsideration by a larger Bench. Previous to this decision the current of authority was fairly evenly divided. It is further noteworthy that when the answer of the Full Bench to the question propounded came back to the Division Bench hearing the First Appeal in question, that Bench was so struck by the manifest injustice which that answer involved that it resorted to the inherent power of the Court to override the provisions of the statute as interpreted by the Full Bench, and to give relief to the appellants”.

27. I have already said that there is no question of abatement under O. 22, R. 3 or O. 22, R. 11 in the present case and the ratio of the decision of the Full Bench is not applicable. It is, therefore, strictly unnecessary to decide in this case whether the decision of the Full Bench in 1940 Pat 346 (AIR V 27) (A)’, is correct or not. I do not, therefore, propose to express any opinion on this point.

28. The second question presented for determination is whether the period of limitation in this case should be counted from 16-5-1927, which is the due date of payment mentioned in the mortgage bond of 4-10-1926. It was submitted on behalf of the appellants that the plaintiffs obtained the right of subrogation by depositing the amount under O. 21, R. 89 for setting aside the auction sale in Execution Case No. 66 of 1942.

29. It was argued that the plaintiffs were subrogated to the position of the first mortgagee namely, Suraj Prasad Sah, and limitation would run from 16-5-1927, which was the due date of payment mentioned in the mortgage bond of Suraj Prasad Sah. On behalf of the respondents Mr. J.C Sinha put forward the opposite view point that the starting point of limitation was 12-2-1939 which was the date on which the plaintiffs made the deposit under O. 21, R. 89.

30. In the alternative, Mr. Sinha submitted that the starting point would be 30-10-1940, which was the last date fixed for redemption in the preliminary mortgage decree of 13-4-1940 in Mortgage Suit No. 15 of 1939. For the reasons which I shall presently state, I consider that the argument of Mr. J.C Sinha is unsustainable, that the starting point of limitation is 16-5-1927, which was the due date of payment in the mortgage bond by Suraj Prasad Sah; and that the submission of the appellants on this point is right.

31. It is convenient in the first place to set out the relevant statutory provisions. Article 132 of the Limitation Act states that the period of limitation for a suit “to enforce payment of money charged upon immoveable property” would be twelve years and the period of limitation begins to run from the time ‘when the money sued for becomes due’. Section 92 of the Transfer of Property Act provides:

“Any of the persons referred to in S. 91 (other than the mortgagor) and any co-mortgagor shall on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgages whose mortgage he redeems may have against the mortgagor or any other mortgagee.

32. The right conferred by this section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of mortgagee whose mortgage he redeems.” Under Section 92 of the Transfer of Property Act, therefore, a puisne mortgagee by redeeming a prior mortgage acquires the right of subrogation which means the right of substitution in place of the prior mortgagee. The section does not say that a puisne mortgagee acquires any fresh charge by virtue of his payment, but the puisne mortgagee merely acquires so far as regards redemption, foreclosure or sale of such property “the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee”.

33. The puisne mortgagee in effect stands in the shoes of the prior mortgagee whom he has redeemed he is only clothed with the rights and powers of the prior mortgagee. The right of subrogation is based on the doctrine of equity that the puisne mortgagee who discharges the prior mortgage has the right to demand the performance of the original obligation and the application to that purpose of the securities held by the creditor.

34. In other words, equity applies in favour of the redeeming puisne mortgagee the fiction that he is an assignee of the mortgage, though he has taken no formal assignment. The puisne mortgagee acquires, therefore, no higher rights than those of the prior mortgagee whom he redeems, and he stands on no better footing. It is well established that an assignee at law cannot enforce the security beyond the period of limitation given in the original mortgage.

35. It is obvious that the position of an equitable assignee cannot be better than the position of an assignee at law. A puisne mortgagee is, therefore, bound to enforce the mortgage within the period of limitation applicable to the original mortgage bond. As the Privy Council pointed out in ‘Prannath Roy v. Rookea Begum’, 7 Moo Ind App 323 (353) (PC) (J) “A cause of action is not prolonged by mere transfer of the title”.

36. In other words, the mere circumstance that a particular right has changed hands by formal or equitable assignment does not operate to cause a fresh period of limitation to run, but limitation runs in the same way as though the original mortgagee (i.e the assignor) had been the plaintiff, namely, from the date when the money sued for became due under the mortgage.

37. This view is borne out by the decision of the Judicial Committee in ‘Mahomed Ibrahim Hossein Khan v. Ambika Pershad Singh’, 39 Cal 527 (PC) (K). In that case, there were fire successive mortgagees upon certain properties, the earliest being under a zarpeshgi deed, dated 20-11-1874, & the latest under a simple mortgage bond, dated 17-2-1888, for a sum of Rs. 12,000/-. The last mortgage which was in favour of Mt. Alfan was for the express purpose of paying off the zarpeshgi debt which the mortgagee discharged.

38. On 22-9-1900, the representatives of Mt. Alfan brought a suit to recover Rs. 12,000/- as principal together with interest on a declaration that the properties covered by the mortgage of 17-2-1888, and by the zarpeshgi deed of 20-11-1874, were liable for the entire amount. In other words, the plaintiff claimed priority on the basis of subrogation over the intermediate mortgagees who were made parties to the suit.

39. It appears that the intermediate mortgagees had already instituted suits upon their respective mortgages and obtained decrees in execution of which the properties comprised in the mortgage bonds were sold. To all these suits, except one, the last mortgagee was a party. In these circumstances it was held by the Judicial Committee that the plaintiff's claim for priority in respect of the zarpeshgi deed was barred by constructive ‘res judicata’ as against those intermediate mortgagees in whose suits the last mortgagee was made a party.

40. As against the particular mortgagee who failed to implead the plaintiff's predecessor as a party to his suit, the claim of the latter was not barred by ‘res judicata’, but it was held to be barred by limitation inasmuch as the suit was instituted more than twelve years after the due date of the zarpeshgi, which was Jeth, 1294 Fasli (September, 1887). It was argued in that case by Sir Erie Richards appearing for the plaintiff appellants that Article 132 allowed twelve years from the date “when the money sued for became due”, that the loan made on 17-2-1888 was a money charge on the property, that the due date was expiry of the two years for which the mortgage in suit was made, that is February, 1890, and the suit was brought in 1900 well within the statutory limit of twelve years.

41. For the defendant respondents it was submitted by DeGruither, K.C that the suit was barred as having been brought more than twelve years from the due date mentioned in the zarpeshgi deed of 1874. It was held by the Judicial Committee that the suit was barred by limitation and the argument of the defendant respondents on this point was accepted. ‘At page 558’ of the report Sir John Edge states:

“But as the Rs. 12,000/- were under the zarpeshgi deed of 20-11-1874, repayable in Jeth 1294 Fasli (September, 1887), and this suit was not brought until 22-9-1900, the claim of the plaintiffs to priority is barred by Article 132 of Sch. 2, Limitation Act, 1877, and all that they are entitled to so far as the 5 annas 4 pies share in Fatehpur, Sawaech is concerned, is a decree entitling them to redeem the mortgage of 7-1-1888 on payment to the legal representatives of Lalji Mahto of the amount of the principal and interest in respect of which the 5 annas 4 pies share in Fatehpur Lawaech is concerned, is a decree entitling them to redeem the mortgage of 7-1-1888 on payment to the legal representatives of lialji Mahto of the amount of the principal and interest in respect of which the 5 annas 4 pies share in Fatehpur Lawaech was sold to him under the decree for sale in Gajadhar Mahto's suit of 6-9-1888”.

42. But Mr. J.C Sinha made the submission that the ‘ratio’ of this case has no application to the present case because the first mortgage in favour of Suraj Prasad Sah has ripened into a decree and the plaintiffs had made the deposit under O. 21 R. 89 in order to set aside the auction sale held in execution of the mortgage decree.

43. Learned counsel pointed out that in ‘39 Cal 527 (PC) (K)’, no suit had been brought on the basis of the zarpeshgi deed dated 20-11-1874, and the last mortgage which was in favour of Mt. Alfan was for the express purpose of paying off the zarpeshgi deed of 20-11-1874 and not for the purpose of paying any mortgage decree. It was pointed out by learned counsel that there was a distinction between a case where the prior mortgagee had not been sued upon a case and where the prior mortgagee had been sued upon and a mortgage decree is obtained and subrogation is claimed by the person who pays off the mortgage decree.

44. It was submitted that in the former case limitation would run from the date when the money was payable under the original mortgage bond, but in the latter case limitation would run from the date when the money was payable under the decree, or alternatively from the date of actual payment of the decretal amount. I am unable, however, to accept this argument as valid. Why should the mere fact that the first mortgage has ripened into a decree make any legal difference as regards the date from which the period of limitation is to be computed?

45. The doctrine of subrogation is based on the fiction that the mortgage that is paid off is not extinguished but there is an equitable assignment of the mortgage in favour of the subrogee. There is a notional assignment of the mortgage, but it is not correct to say that there is a notional assignment of the mortgage decree. There is high authority for the proposition that the second mortgagee does not substitute himself in the mortgage decree and does not obtain the status of a decree-holder but is merely an equitable assignee of the charge of the original mortgage.

46. That is the ‘ratio’ of the decision of the Judicial Committee in ‘Gopi Narain Khanna v. Bansidhar’, 32 Ind App 123 (PC) (L). In that case the second mortgagee who had paid off the first mortgagee the amount due to him after a decree on the first mortgage, instituted a suit to enforce a charge which he had acquired by virtue of the payment. The defendant contested the suit on the ground that Section 244 of the CPC was a bar, namely, that the question at issue should have been determined by order of the Court executing the previous decree and not by separate suit.

47. This objection was upheld by the High Court who took the view that the suit was barred under S. 244, and that the application of Gaya Prasad to the Subordinate Judge in the execution department for an order for foreclosure absolute was the proper and only application he could have made and ought to have been granted. The plaintiff Gaya Prasad took the matter in appeal to the Judicial Committee who allowed the appeal and reversed the decision of the High Court.

48. The Judicial Committee held that Gaya Prasad was entitled to establish by a suit his right to enforce the charge under the first mortgage and Section 244 of the CPC, did not apply so as to bar the suit. In the course of judgment Lord Davey remarked:

“It is true that Gaya Prasad (the puisne mortgagee) having made that payment (as he had the right to do) acquired under Section 74 of the Transfer of Property Act all the rights and powers of the mortgagees as such. But this would not have the effect of reviving or giving vitality to a decree, which by its terms, had become discharged.”

49. Lord Davey also pointed out that on payment by the second mortgagee all the amount due to the first mortgagee into Court and acceptance of that sum by him “the deurpe was spent and became discharged and satisfied”. The question was how the plaintiff was to enforce the charge which he had acquired by virtue of the payment.

50. The plaintiff had filed the suit for foreclosure on the footing of the first mortgage, and the Judicial Committee sustained that action and permitted him to sue not to establish a right to execute the first mortgagee's decree but to establish the right to enforce the charge under the original first mortgage, even though at that stage a decree had been obtained thereon & the plaintiff was given a decree that if the first defendant did not pay up his share of the amount within a specified time, he was debarred from redeeming his share.

51. The Judicial Committee held that the plaintiff's remedy was a suit on his subrogated rights under the first mortgage charge and the plaintiff's right was not to substitute himself in place of Bansidhar in the previous mortgage decree or to enforce that mortgage decree. This case clearly de monstrates that the puisne mortgagee who pays off the decree on the first mortgage does not get the status of a decree-holder. He cannot subrogate or substitute himself in place of the decree-holder and enforce the decree in execution department against the judgment-debtor.

52. In ‘32 Ind App 123 (PC) (L)’, Lord Davey also pointed out that the decree granted by the Subordinate Judge was not in proper form and did not provide for the exercise by the puisne mortgagees of successive rights of redemption or for working out the rights of the parties in the event of any puisne mortgagee in front of the mortgagor redeeming the mortgaged property so as to make a complete decree. Lord Davey observed that the appropriate decree for that purpose was well-known to the Chancery Division of the English High Court and a form of it was to be found in Seton on Decrees, Edn. 6, Vol. III, P. 1979.

53. It is true that the question of limitation was not directly in issue in ‘32 Ind App 123 (PC) (L)’. But the principle of that case strongly supports the view that even though the first mortgage had ripened, into a decree there is no legal difference as regards the date from which the period of limitation would be computed and under Article 132 of the Limitation. Act the ‘terminus a quo’ would be the due date of payment under the original mortgage bond.

54. That is the ‘ratio decidendi’ of a decision of a Division Bench of this Court in ‘1922 Pat 499 (AIR V 9) (D)’. In that case a puisne mortgagee had obtained a mortgage decree in execution of which he purchased the mortgaged properties. The judgment-debtors filed an application under O. 21, R. 90 to set aside the sale. Pending that application the decree-holder paid off a decree on the prior mortgage which in the meantime it was sought to execute.

55. The proceedings under O. 21, R. 90 ended in a compromise by which the sale was set aside after the judgment-debtor paid the decretal amount. The mortgagees brought a suit against the mortgagors to enforce the prior mortgage by a right of subrogation or in the alternative for a personal decree against them. It was held by Courts and Das, JJ. that the claim to enforce the prior mortgage was barred by limitation as the suit was brought more than twelve years after the accrual of the cause of action on that mortgage.

56. It was further held by the Division Bench that limitation for exercise of the right to enforce the prior encumbrance began to run from the date on which the money due on the prior encumbrance became due. The same principle is enunciated by a Division Bench of the Madras High Court consisting of Wallace and Madhavan Nayar, JJ. in ‘Kotappa v. Raghavayya’, 1927 Mad 631 (AIR V 14) (M).

57. It was held by the learned Judges in that case that a puisne mortgagee who paid off the decree on a prior hypothecation is subrogated to the right of the prior mortgagee and that he is not entitled to enforce the decree as such but can only enforce his charge arising by subrogation. It was further held by the learned Judges that the period within which he should enforce it was twelve years from the date on which a suit on the prior mortgage should have been brought and not twelve years from the date of payment.

58. On behalf of the plaintiff respondents Mr. J.C Sinha placed much reliance upon the Allahabad case ‘Alam Ali v. Beni Charan’, 1936 All 33 (AIR V 23) (FB) (N), where Sulaiman, C.J and Bennet, J. held that where a subsequent mortgagee redeemed a prior mortgagee by paying off the prior mortgagee's decree, limitation would run not from the date when the money payable under the prior mortgage became due but from the date of payment of the mortgage decree. The learned Judges proceeded upon the view that Section 92 of the Transfer of Property Act conferred upon the person who paid off the previous mortgage decree a statutory right of subrogation

“which right was not identical with the rights of an assignee of the mortgage but was an acquisition of a fresh charge enforceable within the period of limitation applicable to such a suit”.

59. Ganga Nath, J. who pronounced a dissenting judgment expressed the opinion that the subrogee's rights were the same whether the mortgage he redeemed had already ripened into a decree or not. Ganga Nath, J. held that no fresh charge was created under S. 92 when the puisne mortgagee paid off the decree obtained on an earlier mortgage. With great respect I think that the view taken by the majority Judges in this Full Bench case is not correct.

60. In the first place, the distinction made by Sulaiman, C.J between subrogation by the puisne mortgagee before the decree and subrogation after the decree is not consistent with the view that Section 92 of the Transfer of Property Act creates a fresh charge. The language of Section 92 of the amended Transfer of Property Act is similar in material respect to the language of Section 74 of the unamended Act.

61. Sulaiman, C.J said that under Section 92 of the amended Act the subrogee obtains in respect of the mortgaged property “all the rights and powers of the previous mortgagee”. The same language is used in Section 74 of the unamended Act. If a statutory charge arises under S. 92 of the amended Act, there is no reason why such a statutory charge should not arise under S. 74 of the old Act.

62. But Sulaiman, C.J expressed the view that if the prior mortgage had not ripened into a decree, the subsequent mortgagee, who redeems the prior mortgage, could bring a suit on the basis of the prior mortgage only within twelve years of the due date. But if the prior mortgage has ripened into a decree, the puisne mortgagee gets a statutory charge as soon as he pays the mortgage decree. Clearly this distinction is illogical.

63. In the second place, there is nothing in the language of S. 92 or the old S. 74 to suggest that the puisne mortgagee gets a fresh charge from the date of subrogation. It is true that Sulaiman, C.J has referred to the difficulties of the puisne mortgagee where he says off the decree after the expiry of twelve years from the date of the original mortgage. In such a case the puisne mortgagee gets no enforceable right whatsoever if the starting point of limitation is held from the due date of the prior mortgage under Article 132 of the Limitation Act. Sulaiman, C.J observes ‘at page 42’:

“To hold this would be to grant him the statutory rights and powers of the mortgagee decree-holder on account of his payment, and at the same time to deny him those rights on the ground of limitation. I think that this was not the position contemplated by the Legislature, nor would it be in accordance with the rule of justice, equity and good conscience”.

64. It is true that the puisne mortgagee is encompassed by difficulties in such case, but to hold that S. 92 confers a statutory right is not really to interpret the words of the statute but to legislate under the thin guise of interpretation. The language of S. 92 and that of the old S. 74 is clear, and it is not hence permissible to a Court in the matter of construction to bring in equitable considerations.

65. In the third place, the reasoning of Sulaiman, C.J is mainly based upon a previous decision ‘Shib Lal v. Munni Lal’, 1922 All 153(2) (AIR V 9) (O), in which it was held by a Division Bench that by paying off a previous mortgage decree the subsequent mortgagee acquired a fresh charge with regard to the mortgaged properties and could institute a separate suit within twelve years of the date of payment to enforce such a charge.

66. But the decision in ‘1922 All 153(2) (AIR V 9) (O)’, proceeds on an erroneous line of reasoning. The learned Judges were wrong in applying the provisions of S. 95 of the old Act, which was applicable only when a co-mortgagor discharged the mortgage, to a case coming under S. 74 of the old Act which was worded in quite a different manner. ‘At page 154, the learned Judges said

“As there was a charge on the mortgagors' property in favour of the first mortgagee, and the second mortgagee, the present plaintiff, discharged that charge, he acquired a charge on the property. On the principle of Section 95 of the Transfer of Property Act which has been held not to be exhaustive, a co-mortgagor who discharges a mortgage is entitled to a charge on the property of the other mortgagor. On the same principle a second mortgagee who discharges a prior mortgage acquires a charge on the property which he relieves of liability for the mortgage. This is also manifest from the provisions of S. 74”.

67. This reasoning is obviously incorrect and in a later decision of the Calcutta High Court in ‘Umar Ali v. Asmatali’, 1931 Cal 251 (AIR V 18) (FB) (P), it was pointed out by the Full Bench that there was a marked distinction between S. 74 and S. 95 of the old Act and that the right given to a co-mortgagor under S. 95 was not the same as that given to a puisne mortgagee under S. 74 but was a charge with the incidents of a charge under the Act.

68. The legal unsoundness of the doctrine laid down in ‘1936 All 33 (AIR V 23) (PB) (N)’, is brought into high relief by the decision of the later Full Bench in ‘Munna Lal v. Chunni Lal’, 1945 All 239 (AIR V 32) (Q). It was held by the majority of the Full Bench that there was no difference in principle between payment of a prior mortgage by a subsequent mortgagee and discharge of a decree obtained on a prior mortgage by the subsequent mortgagee, and in either case the right of subrogation acquired by the subsequent mortgagee was identical and as such the period of limitation or the enforcement of that right must be identical.

69. It was accordingly held that even in a case where the subsequent mortgagee pays off the earlier mortgage and no suit had been brought on the earlier mortgage the subsequent mortgagee could enforce the right of subrogation within twelve years from the date of payment. The view taken by the majority of the Full Bench was that irrespective of the question whether the subrogation was before or after the decree, the ‘terminus a quo’ for limitation was the date of payment by the puisne mortgagee and not the due date of payment under the original mortgage bond.

70. The decision of this Full Bench was, therefore, a logical extension of the doctrine laid down in the earlier Full Bench case ‘1936 All 33 (AIR V 23) (N)’ But Mr. J.C Sinha arguing on behalf of the respondents, submitted that the view taken by the Full Bench in ‘1945 All 239 (AIR V 32) (Q)’, was an extreme view and that he was not in a position to support that view. I say this with great respect, but I think that the view of the Full Bench in ‘1945 All 239 (AIR V 32) (Q)’ is contrary to principle and authority.

71. As I have already said, there is nothing in the language of S. 92 to support the view taken by the Full Bench and moreover the decision of the Privy Council in ‘39 Cal 527 (PC) (K)’, is directly opposed to the law laid down by the majority Judges in ‘1945 All 239 (AIR V 32) (FB) (Q)’.

72. I next turn to the Calcutta case ‘Shamsuddin Bhuya v. Asadulla’, 1945 Cal 194 (AIR V 32) (R), upon which the respondents placed much reliance. It was held by Mukherjea and Sharpe, JJ. in this case that a puisne mortgagee who satisfied a decree obtained by a prior mortgagee was in law relegated to the position of the decree-holder and though he could not execute the decree unless his rights were properly declared in the decree itself he could institute a suit to enforce his rights under the decree and if the decree paid off by him was one for sale, he could in the suit brought by him pray for sale of the property to which the decree related for the discharge of the decretal debt.

73. It was also held that Article 132 of the Limitation Act applied to such a case and the starting point of limitation was the date of payment fixed by the preliminary decree. ‘At page 201’ Mukherjea, J. states:

“We cannot agree with the view taken in ‘1936 All 33 (AIR V 23) (N)’, that the starting point of limitation in such suits is the date of payment of the decretal dues by the puisne mortgagee. Sulaiman, C.J spoke of a statutory right accruing on the date of payment.

74. We think that as the right which accrues on payment is the right to enforce the charge that had already merged in the decree, it should be enforced within twelve years from the date of payment mentioned in the decree itself. To this extent, we agree with the opinion, though tentatively expressed, by Chatterji, J. in ‘1943 Pat 305 (AIR V 30) (P)”.

75. I need hardly say that I have the greatest respect for any opinion pronounced by Mukherjea, J. but it appears to me that the decision of the learned Judge in this case is not correct. The only authority upon which the learned Judge relies is ‘Parvati Ammal v. Venkata Rama Iyer’, 1925 Mad 80 (AIR V 12) (S), in which Wallace, J. expressed the tentative view that a puisne mortgagee by paying off the prior mortgage is subrogated not to the prior mortgage in its original form as a mortgage charge, but to the decree charge held by the prior mortgagee.

76. But in a later case ‘1927 Mad 631 (AIR V 14) (M) Wallace, J. recanted this view and confessed that a puisne mortgagee was entitled only to enforce the original mortgage and not to enforce the mortgage decree and that the charge was enforceable only within the period of limitation of such a charge, namely, twelve years from the date of payment. Mukherjea, J. concedes that no charge is created under Section 92 of the Transfer of Property Act and the Allahabad decision to the contrary in ‘1936 All 33 (AIR V 23) (PB) (N)’, is not right.

77. But the learned Judge has proceeded upon the basis that the rights of the prior mortgagee under the mortgage bond have already merged in the mortgage decree. It is assumed that the mortgage has become extinct as a mortgage and the security has become merged in the decree, and, therefore, the starting point of limitation would not be the due date of payment under the original mortgage bond but would be the date fixed for payment by the Court in the mortgage decree. Is this assumption correct?

78. I do not think the assumption is correct or that the security of the prior mortgage has merged in the mortgage decree. It is well established that though a deed merges in a judgment yet if the deed is secured by a mortgage, the collateral security of the mortgage does not merge in the decree. In other words, the cause of action for the debt ‘transit in rem judicatum’ but that does not affect the concurrent remedy on the mortgage. In ‘Drake v. Mitchell’, (1803) 3 East 251 (252) (T); Lord Ellenborough stated:

“But a judgment recovered in any form of action is still but a security for the original cause of action until it be made productive in satisfaction to the party; and therefore, till then it cannot operate to change any other collateral concurrent remedy which the party may have. If indeed one who is indebted upon simple contract give a bond or have judgment against him upon it the simple contract is merged in the higher security. So one may agree to accept of a different security in satisfaction of his debt; but it is not stated here that the note and bill were accepted in satisfaction and in themselves they cannot operate as such until the party has received the fruits of them.”

79. Even under the repealed Section 89 of the old Transfer of Property Act, it was decided by a Full Bench of the Calcutta High Court, in ‘Bibijan Bibi v. Sachi’, 31 Cal 863 (U) that a mortgagor could redeem even after decree for sale was passed and this he might do at any time until confirmation of the sale, the reason being that the mortgage security was not merged in the judgment but on the contrary subsisted until satisfaction of the decree.

80. It should be noticed in this connection that Section 89 of the old Transfer of Property Act, 1882, contained the following clauses “and thereupon the defendant's right to redeem and the security shall both be extinguished.” But this clause was omitted by the Legislature when S. 89 was re-enacted by O. 34, R. 5 of the Code of Civil Procedure. The legal position is the same in the United States:

“The merger of the note in a judgment does, not extinguish the debt and the mortgage continues a lien till it is satisfied, or the judgment is barred by the statute of limitations.

81. The rule is the same whether the judgment be for the whole or for a part only of the mortgage debt and whether the security be in the form of an ordinary mortgage or of a trust deed. Neither does a decree in a foreclosure suit nor a judgment on ‘scire facias’ impair the lien of the mortgage; nor the taking of a recognizance for the sum due in place of the mortgage note. The only effect of a judgment on the note is to establish the validity of such note, as that of the mortgage securing it. The mortgagee may afterwards foreclose the mortgage” (Para 1196, Jones on Mortgage, Vol. 2, Edn. 8.)”

82. I am, therefore, of the opinion that the basis of the reasoning of the learned Judges in ‘1945 Cal 194 (AIR V 32) (R)’, is not correct, and that the puisne mortgagee who pays off a prior mortgage decree is not subrogated to the position of a decree-holder and that the puisne mortgagee does not get a fresh starting point of limitation for enforcing his charge from the date of payment fixed in the mortgage decree.

83. Counsel for the respondents also relied upon two Patna cases ‘1939 Pat 375 (AIR V 26) (E)’ and ‘1943 Pat 305 (AIR V 30) CP)’. In the first case it was held by Moor and Chatterji, JJ. that a person who advances money under a new contract of mortgage to the mortgagor for the express purpose of paying off a prior mortgage decree, acquires a right of subrogation under a contract and the cause of action for a suit to enforce this right of subrogation arises from the date when the mortgage decree is paid off.

84. It was also held that limitation in such a suit did not run from the accrual of the cause of action on the original mortgage. Chatterji, J. who pronounced the leading judgment, followed the decision of the Full Bench of the Allahabad High Court in ‘1936 All 33 (AIR V 23) (N)’. In the second case ‘1943 Pat 305 (AIR V 30) (F)’, which was again a decision of Chatterji and Meredith, JJ. the question arose as to whether the starting point of limitation would be the date of payment of the mortgage decree or whether the starting point would be the date of payment fixed in the original mortgage bond.

85. Chatterji, J. who again delivered the leading judgment followed his previous decision in ‘1939 Pat 375 (AIR V 26) (E)’ and held that the starting point of limitation should not be the due date of payment under the original mortgage bond. But the learned Judge observed that

“it was more logical to hold that the starting point of limitation would be the date fixed by the mortgage decree for payment and not the actual date of payment by the puisne mortgagee.

86. To this extent Chaterji, J. revised the view which he had expressed in ‘1939 Pat 375 (AIR V 23) (E)’ The decisions of Chatterji, J. in both the Patna cases namely, ‘1939 Pat 375 (AIR V 26) (E)’ and ‘1943 Pat 305 (AIR V 30) (F)’, were mainly based on the judgment of Sulaiman, C.J in ‘1936 All 33 (AIR V 23) (N)’. For the reasons which I have fully stated and which I need not reiterate, I hold with great respect that the view taken by Chatterji, J. does not correctly represent the law.

87. On behalf of the respondents reliance was placed in the course of argument upon the decision of the Privy Council in ‘Batey Krishna v. Parsotam Das’, 1944 PC 85 (AIR V 31) (V). In that case the respondents as subsequent mortgagees of the suit property had in a previous suit brought, under the mortgage obtained a decree dated 27-5-1927 for foreclosure subject to a declaration that the appellant had a charge on certain specified suit properties in respect of sums paid by him in 1917 in redemption of mortgages prior to that of the respondents.

88. The appellant brought the suit on 31-7-1931 in order to recover the sums so paid by enforcement of the charge by sale of the mortgaged property. It was held by the Judicial Committee that the appellant had been subrogated to the rights of the prior mortgagees, and the rights thus obtained became merged in the decree passed in the foreclosure suit and also that a charge was created in favour of the appellant by the final decree in that suit, and that for the purposes of limitation time ran from the date of the charge thus created.

89. Accordingly the appellant having brought a suit in 1931 was held to be within the period of limitation prescribed by Article 132 of the Limitation Act. It is manifest that the decision of this case is of no assistance to the respondents. It should be noticed in the first place that defendant 3 in whose favour a charge was created in the foreclosure suit of 1927 was in the position of a co-mortgagor and he was not in the position of a puisne mortgagee.

90. In the second place, the charge itself was created by a decree of the Subordinate Judge in the foreclosure suit of 1927, and the only question that was argued before the Privy Council was whether for the purposes of limitation time would run from the date of the charge thus created, or whether time would run from the due date of payment of the original mortgage bond.

91. It was held by Sir Madhavan Nair that the decree passed by the Subordinate Judge created a charge in favour of the plaintiff and the argument of the respondents that the decree did not create a new charge but that it only declared a charge which was existing before was rejected. I do not think that this decision has any bearing on the problem to be determined in the present case.

92. It was lastly submitted by Mr., J.C Sinha that a puisne mortgagee would suffer great hardship in many cases if the starting point of limitation is taken to be the due date for payment in the original mortgage bond. It was pointed out that on the date the puisne mortgagee pays off the decree, the period of twelve years may have already expired from the due date of the original mortgage and the puisne mortgagee would acquire no right whatsoever.

93. Counsel stated that in most cases the prior mortgagee brought a suit just when the period of limitation was about to expire and by the time the mortgage decree is obtained, the statutory peril of twelve years would have elapsed. It was contended that in these marginal cases the right of subrogation given under S. 92 to a puisne mortgagee would be illusory and of no avail.

94. But an argument ‘ab inconvenienti’ can only be entertained when the language of the statute is not clear. An argument of that sort is available as an aid to construction only if there is ambiguity in the words to be construed. I have already pointed out that there is no ambiguity in the language of Section 92 of the Transfer of Property Act and Article 132 of the Limitation Act. I am also inclined to think that the argument of alleged hardship to the puisne mortgagee is much exaggerated.

95. If the puisne mortgagee is a party to the prior mortgagee's suit, it would be his duty to ask the trial Court to grant a decree in the proper form. As suggested by Lord Davey in ‘32 Ind App 123 (PC) (L)’, if the puisne mortgagee desires to redeem the prior mortgage, it is his duty to ask the Court to grant a decree providing that the puisne mortgagee would exercise the right of redemption, and in case of his redemption within a certain time, the decree itself should be so framed as to enable him to take out execution against the mortgagor for realising the due amount by sale of the mortgaged properties.

96. There is provision for such a decree in Form 9 of Appendix D of the CPC. If the proper decree is passed, the puisne mortgagee who is subrogated to the position of the prior mortgagee would be able to execute the decree without bringing a fresh suit on the original mortgage. If the puisne mortgagee does not ask the Court to grant a decree in the proper form, he has only to blame himself and the law cannot be interpreted to help him on the ground of hardship.

97. Take again the case where the puisne mortgagee is not a party to the prior mortgagee's suit. If the prior mortgagee obtains a decree in such a suit, it would be imprudent or foolish on the part of the puisne mortgagee to pay off the decree before or during the execution proceedings. For the right of the puisne mortgagee is not affected by any decree for sale or foreclosure obtained by the prior mortgagee in his suit.

98. The puisne mortgagee is fully protected by Section 94 of the Transfer of Property Act and it is open to him to bring a separate suit on his own mortgage bond impleading the prior mortgagee and the mortgagor for redemption of the properties. The limitation for bringing such a suit would be 60 years under Article 147 of the Limitation Act (see the Full Bench decision in ‘Savamali Molla v. Anisuddin Molla’, 1929 Cal 609 (AIR V 16) (W).

99. I should also point out that Article 132 applies only if the puisne mortgagee (who pays off the prior mortgage decree) sues as a plaintiff, but if the puisne mortgagee is in possession of the properties and a suit is brought by the mortgagor to redeem, the puisne mortgagee may resist the suit as a defendant and use the prior mortgage as a shield to protect his own interest. I, therefore, consider that the argument of Mr., J.C Sinha on the ground of hardship is somewhat extravagant and in any case such an argument cannot be entertained on a matter of construction when the language of the statute is clear.

100. For the reasons which I have attempted to express, I hold that the period of limitation in this case would begin from 16-5-1927, which is the due date of payment of the original mortgage bond under Article 132 of the Limitation Act. I would accordingly answer the second question referred to the Full Bench.

Jamuar, J.:— I agree with the answer to the questions as proposed by my learned brother Ramaswami, J. and with the reasons given by him.

Choudhary, J.:— I also agree with the view taken by my learned brother Ramaswami, J.

Kanhaiya Singh, J.:— I agree with views expressed by my learned brother Ramaswami, J. and have nothing to add.

Das, C.J:— At my request, my learned brother Ramaswami, J. was kind enough to prepare his judgment first, and I had the advantage of seeing the judgment which he proposes to pronounce. My learned brother has stated the facts and has also stated the two questions which have been referred to the Full Bench.

101. On the first question, I agree With my learned brother as to the true scope and effect of O. 41, Rr. 4 and 33 of the CPC and have nothing useful to add. I also agree with my learned brother that it is unnecessary to decide in this case whether the decision of the Full Bench in ‘1940 Pat 346 (AIR V 27) (A)’, is correct or not.

102. On the second question, that of limitation, I regret to have to say that I hold a view different from that of my learned brother Ramaswami, J. There is a good deal of divergence of judicial opinion on that question, and three different views have been expressed in the reported decisions, which have been referred to and surveyed by my learned brother.

103. In some of the decisions it has been held that the period of limitation runs from the date of accrual of the cause of action on the mortgage bond itself and not from the date of the payment of the decretal amount; vide ‘1922 Pat 499 (AIR V 9) (D)’, ‘1927 Mad 631 (AIR V 14) (M), ‘Bansidhar v. Shiv Singh’, 1933 All 908 (AIR V 20) (X), ‘Madappaya v. Mahabala Rao’, 1937 Mad 826 (AIR V 24) (Y), ‘Balchand v. Ratanchand’, 1942 Nag 111 (AIR V 29) (Z), ‘Radha Kishan v. Hazarilal’, 1944 Nag 163 (AIR V 31) (Z1), ‘Perumal Reddial v. Suppiah Thevar’, 1945 Mad 500 (AIR V 32) (Z2), ‘Sheosaran Singh v. Amla Co-operative Credit Society Ltd., Gaya’, 1945 Pat 192 (AIR V 32) (Z3).

104. On the other hand, in several other decisions, it has been held that time begins to run from the date of payment of the decree; ‘vide’ ‘1922 All 153(2) (AIR V 9) (O)’, 1936 All 33 (AIR V 23) (N)’, ‘1939 Pat 375 (AIR V 26) (E)’, ‘1945 All 239 (AIR V 32) (Q)’.

105. A third view is that the starting point of limitation is the date fixed for payment by the decree which is paid up: vide ‘1925 Mad 80 (AIR V 12) (S)‘, ‘1943 Pat 305 (AIR V 30) (F)’, ‘1945 Cal 194 (AIR V 32) (R)’. In my opinion, the third view is the most reasonable view and should be accepted.

106. The question has been considered at some length by the learned Commentator in Sir Dinshah Mulla's Transfer of Property Act (1949 Edn.) at pp. 581 to 587, and the view which I hold has been stated so clearly in those pages that I feel no hesitation in, and offer no apology for, quoting extensively from the observations made by the learned commentator.

107. Under the first paragraph of Section 92 of the Transfer of Property Act, any of the persons referred to in S. 91 (other than the mortgagor) and any co-mortgagor shall, redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.

108. The third paragraph gives a right of subrogation to a person who advances to a mortgagor money with which the mortgage is redeemed, but subject to certain conditions. It is unnecessary to state those conditions for the purpose of the present case. The right of subrogation given by Section 92 of the Transfer of Property Act may arise at two different stages, namely, (1) when the prior mortgage is paid off before the prior mortgagee has put the mortgage in suit and got a decree thereon; and (2) when after the prior mortgagee sued upon his mortgage and got his decree, the decretal amount is paid off.

109. It is not disputed before us that the relevant Article of the Limitation Act is Article 132, which states that the period of limitation for a suit “to enforce payment of money charged upon immoveable property” would be twelve years, and the period of limitation begins to run from the time “when the money sued for becomes due”. The question is, when does the money sued for become due? In my opinion, the answer to the question will be different for the two stages mentioned above.

110. Since the decision of the Privy Council in 32 Ind App 123 (PC) (L), it is now well settled that the right of subrogation is available even after the prior mortgage has been put in suit and a decree has been passed thereon. Subrogation means substitution: the person redeeming is substituted for the incumbrancer whom he has paid off. It may be either conventional or legal. The distinguishing feature of subrogation by operation of law is that the incumbrance that is paid off is not extinguished but is treated as kept alive and assigned to the person making the payment.

111. The leading decision of the Privy Council on the question of limitation when the money is paid off, before a suit and decree, is 39 Ind App 68 (PC) (K). In that case there were six mortgages; the first one was effected by a zarpeshgi deed dated 20-11-1874, for repayment of Rs. 12,000/- in twelve years, and the last one was in favour of one Musammat Alfan for repayment of Rs. 12,000/- in two years.

112. The mortgage money was by agreement applied to paying off the amount due to the zarpeshgidar who made over the zarpeshgi deed to Alfan. This last mortgage was assigned by the heirs of Alfan to the plaintiffs-appellants to whom the zarpeshgi deed was also delivered. The intermediate mortgagees filed suits separately and obtained decrees. In all the said suits except that on the fifth mort-t gage the representatives of Alfan, that is, the assignor of the plaintiffs-appellants, were parties but they raised no issue and claimed no priority on the ground of having paid up the zarpeshgideed.

113. The plaintiffs-appellants on 22-9-1900 filed the suit out of which the appeal arose on the mortgage dated 17-2-1888. It will be noticed that this suit was filed more than twelve years after the term of the zarpeshgi deed expired, as well as more than twelve years after the date when Alfan paid up the zarpeshgidar on the execution of her mortgage on 17-2-1888.

114. Their Lordships held (i) that the zarpeshgi was kept alive for the benefit of Alfan, who thereby obtained priority over the intermediate mortgagees, (ii) that the claim to enforce that priority in the suit which was brought more than twelve years after the term of the zarpeshgi had expired was barred by Article 132 of the Limitation Act, and (iii) that as regards the purchasers at sales in execution of decrees in those intermediate mortgagees' suits in which the representative of Alfan were parties, the suit was barred by ‘res judicata’ by reason of no claim for priority having been made by them in those suits. There was a slight inaccuracy in the corresponding English date given against Jeth 1294 Pasli, but on the question of limitation the Privy Council observed:

“But as the Rs. 12,000/- were under the zarpeshgi deed of 20-11-1874, repayable in Jeth 1294 Pasli (September 1887) and this suit was not brought until 22-9-1900, the claim of the plaintiffs to priority is barred under Article 132 of the second schedule of the Indian Limitation Act, 1877.”

115. Their Lordships in computing the period of limitation started with the expiry of the Zarpeshgi deed as the date of the accrual of the cause of action. In ‘1945 All 239 (AIR V 32) (PB) (Q)’, the majority of a Full Bench of the Allahabad High Court held that in the case of subrogation before or after decree the limitation for enforcing the subrogee's right would begin to run from the date of payment of the prior mortgage or the decretal amount. This decision, in my opinion, goes too far and was clearly inconsistent with the decision of the Privy Council in ‘39 Ind App 68 (PC) (K)’

116. As observed by the learned commentator at p. 585 of Sir Dinshah Mulla's Transfer of Property Act (1949 Edn.):

“The true principle of subrogation is that the person who becomes entitled to it gets the rights of the prior mortgagee in the form in which they are at the time when the right of subrogation arises”. There are two things in a mortgage, a debt and a security; the debt may be satisfied, but the security may be kent alive, and that is the very foundation of the doctrine of subrogation. When the subsequent mortgagee pays off the mortgage debt, the security is not destroyed, but he gets the benefit of the security and can enforce the security. If the payment is made before suit and decree, he gets the same rights as the mortgagee whose mortgage he-redeems may have against the mortgagor or any other mortgagee.

117. In ‘1944 PC 85 (AIR V 31) (V)’, a puisne mortgagee P had paid up the decree on a prior mortgage as also the amount of another mortgage which had not been sued upon. A subsequent mortgagee D filed a suit impleading P. A foreclosure decree was passed but subject to the rights of P. for the two sums paid by him and a final decree was also passed. P. then brought a suit for the recovery of the two sums. The point was taken that P's right as subrogee was founded on the mortgages and a suit on the mortgages he had paid off was out of time. The Privy Council held that the decree in the foreclosure suit gave him a charge and his rights as subrogee had merged in that decree. Their Lordships said:

“The plaintiff by making the two payments mentioned above had subrogated himself to the rights of the mortgagees whom he had paid off and the rights which he had thus obtained became merged in the decree passed by the Subordinate Judge in the foreclosure suit.”

118. In considering the aforesaid decision of the Privy Council, the learned commentator of Mulla's Transfer of Property Act (1949 Edn.) has made the following observations at pp. 584 and 585:

“If the subrogee's right can merge in the decree, surely the mortgagee's right may also do so. It is submitted that when a mortgagee puts his mort gage in suit and a decree” is passed thereon, the mortgagee's right under the mortgage merges in the decree. The mortgagee can no longer file a suit on the mortgage. His security is limited to the amount allowed by the decree. He cannot claim interest at the mortgage rate. In short, his only right is what is given to him by the decree.

Like a mortgage, a mortgage decree has also two elements, a decretal debt and decretal charge. The decree may not create a new charge, but the mortgage charge becomes attached to the decree as an integral part thereof. The mortgage charge is thus transformed and assumes a new garb and a new life as regards its enforceability. If the decretal debt is paid up, the debt is discharged, but what has been called the decretal charge, does not perish with it, for if it does there will be no shoe into which the puisne mortgagee paying up the decretal debt can get into. The payment of the decretal debt can on no sound principle revive the mortgage which has merged into decree and has become an extinct mortgage.”

119. If I may say so with great respect, I entirely agree with the observations made above. It is true that the mortgage lien or charge does not disappear when a decree is passed in a mortgage suit; there is no merger of the mortgage in that sense; nor does the decree create a new charge. The true position is that the mortgage charge becomes an integral part of the decree, and the mortgagee cannot fall back on the original mortgage bond and travel beyond the limits of the decree which he has obtained.

120. If that be the true position, then puisne mortgagee who pays off the mortgage decree must get the rights of the prior mortgagee in the form in which they are at the time when the right of subrogation arises.

121. In ‘32 Ind App 123 (PC) (L)’, the mortgage decree was passed in the form given in old Section 86 of the Transfer of Property Act, which ‘prima facie’ contemplated a suit between one mortgagee and the mortgagor only: the subsequent mortgagee paid up the decretal amount and applied for decree absolute, but his application was dismissed on the ground that he had not acquired the status of a decree-holder and the decree was no longer capable of execution; the subsequent mortgagee then filed a suit for foreclosure and the question was whether such a suit was maintainable.

122. Their Lordships of the Judicial Committee held that the suit was not barred by Section 244 of the CPC (now S. 47) and that in view of the language of the decree as drawn up, a separate suit was the appropriate remedy, as a new decree was required to work out the rights of the parties. In my opinion, in ‘32 Ind App 123 (PC) (L)’, all that the Privy Council meant was that the decree being drawn on in the form prescribed by S. 86, is spent itself in the sense that the decretal debt being gone, the decree could not be executed.

123. The Privy Council did not say or mean that the decretal charge had also vanished or the mortgage charge had revived. I am further of the opinion that Wallace, J. correctly put the position in ‘1925 Mad 80 (AIR V 12) (S)’. He formulated the question in the following words:

“The point for decision is whether when she paid it off, she is to be subrogated to it in its original form as a mortgage charge, or to it in the form in which it has developed, viz. the right to sell the property in discharge of the mortgage decree.”

124. The learned Judge then answered the question as follows:

“The essence of subrogation is that the party paying off a charge becomes in equity the assignee of that charge. It would seem to follow, that he is subrogated to the charge in the form which it has assumed when his assignor in equity is (by a legal fiction) supposed to make the assignment. It is difficult to see how an assignment can have the effect of, so to speak, setting back the hands of the clock of evolution, and reviving a form out of which the charge has already developed, so that the charge assigned is not the charge as on the date of assignment, but some previous and outworn state thereof.”

125. It is true that in ‘1927 Mad 631 (AIR V 14) (M)’, Wallace, J. changed his views; but the reasons for the change do not appear to me to be very convincing. On the contrary, I think that the earlier reasons which Wallace, J. gave in ‘1925 Mad 80 (AIR V 12) (S)’, for the answer to the question of limitation are more convincing. The following observations at p. 586 of Mulla's Transfer of Property Act (1949 Edn.) are, I think, important:

“The learned Judge was apparently oppressed with the supposed technical difficulties in giving effect to the views expressed in the previous case. If one keeps in view the difference between substantive rights and remedy no difficulty need arise. Section 92 is concerned with and lays down a rule of substantive law and confers a substantive right. How and within what time that right is to be enforced appertains to the domain of the law of procedure and limitation, both of which are what lawyers call adjective law. Every right of a civil nature is enforceable.

The Courts have jurisdiction to try all suits of a civil nature except suits of which their cognizance is either expressly or impliedly barred. If a prior mortgage is paid up before it has merged into a mortgage decree, the person paying, if he comes within S. 92, gets the right of the prior mortgagee which at that stage is wholly founded on the mortgage itself. Immediately preceding such payment the remdey of the prior mortgagee was to sue upon the mortgage. The subrogee's right is also to sue upon the mortgage.

If, however, the mortgage had ripened into a mortgage decree before payment, the subrogee gets into the substantive right of the decree-holder not qua mortgagee but as a decree-holder. How was the right of the mortgagee decree-holder to be enforced? In England a suit upon a judgment was a familiar procedure. The right of a mortgagee decree-holder is certainly a right of a civil nature. What prevents him from suing upon his decree?

It is the rule of procedure now embodied in Section 47 of the CPC that bars such a suit. Even under S. 47 if a decree is merely a declaratory decree or is not executable, a suit is the proper remedy.

Unless the decree is drawn up as suggested by the Privy Council and as now provided in Form 9 of Appendix D of the CPC the subrogee cannot execute the decree according to the rules of procedure but, for that reason, his right does not vanish in thin air. The right remains and as he is not affected by S. 47 he has his ordinary remedy by way of a suit which but for the rule of procedure embodied in that section would also have been available to the mortgagee-decree-holder.

The law of limitation is also part of the adjective law and it regulates the remedy by prescribing period within which particular forms of proceedings are to be initiated but does not affect or qualify or destroy the right. This is clearly recognised by the fact that even when the proceedings to enforce a right are barred by limitation the right is not extinguished, unless the case comes within Section 28 of the Limitation Act.

If this distinction between the substantive right which is regulated by substantive law and the remedy which is regulated by adjective law is kept in view, there can be no difficulty in giving full effect to the doctrine of subrogation, namely, that if at the time of payment the mortgage is alive as a mortgage the subrogee's right is on the mortgage and his remedy is a suit which must be brought within 12 years from the accrual of the cause of action on the mortgage but that if at the time of payment the mortgage had merged in a decree the subrogee gets decree-holder's right and his remedy, if the decree is not in Form 9, is by way of suit which must be brought, under Article 132, within 12 years from when the money due under the decree becomes payable.”

126. Again I respectfully agree with the afore-said observations.

127. In ‘Janki Nath Roy v. Pramatha Nath’, 1940 PC 38 (AIR V 27) (Z4)’, which was a decision with regard to the third paragraph of Section 92 of the Transfer of Property Act, Lord Romer in delivering the judgment of the Board observed:

“Turning now to the statute, the first thing to be observed is that the third paragraph of S. 92 only applies where the mortgage has been redeemed. In the present case it is said that the mortgage has not been redeemed inasmuch as there has been no reconveyance or what in India takes the place of a reconveyance. This contention however, loses sight of the distinction between the redemption of a mortgage & the redemption of the property mortgaged.

In their Lordships' opinion, it is clear that the words in the section ‘mortgage has been redeemed’ refer merely to the payment of the mortgage money and not to an extinction of the mortgagee's rights over the mortgaged property. If such rights had become extinguished, there would be none to which the person advancing the money could be subrogated.”

128. I see no reason why the same principle should not to be applied to the first paragraph of the section. When a subsequent mortgagee pays off the prior mortgagee who has already obtained a decree on the foot of his mortgage, he satisfies the debt, but the security is kept alive; but the security has by the become an integral part of the decree; it has, in the words of the learned commentator of Sir Dinshah Mulla's Transfer of Property Act (1949 Edn.) assumed a new garb and a new life as regards its enforceability. The subrogee steps into that new garb and new life.

129. To quote the words of S. 92, he gets the same, rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee. After a decree has been passed, the security is limited to the amount allowed by the decree, and the original mortgagee decree-holder cannot travel be and the limits of the decree; the subrogee also cannot travel beyond the limits of the decree and the subrogee's rights are the same as those of the mortgagee decree-holder whom he pays up.

130. If that be the correct position, then it follows that if at the time of payment the mortgage is alive as a mortgage, the subrogee's right is on the mortgage and his remedy is a suit which must be brought within twelve years from the accrual of the cause of action on the mortgage; if, however, at the time of payment the mortgage has ripened into a decree, the subrogee gets the mortgagee-decree-holder's right, and his remedy, if the decree is not in Form No. 9, is by way of suit which must be brought under Article 132 within twelve years from the date when the money due under the decree becomes payable.

131. I am unable to agree that procedural law should be so exalted as to nullify substantive law. If the mortgage has ripened into a mortgage decree before payment, the subrogee gets into the substantive right of the decree-holder, not qua-mortgagee but as a decree-holder. Unless the decree is drawn up as now provided in Form No. 9 of Appendix D of the CPC, the subrogee cannot execute the decree according to rules of procedure: but I am unable to agree that for that reason his substantive right under Section 92 of the Transfer of Property Act should disappear.

132. I am not looking at the question from the point of view of inconvenience only. I think that a question of principle is also involved.

133. I do not subscribe to the view that the payment of the decretal amount creates a fresh charge or a statutory right giving the subrogee some thing of the nature of a fresh charge, and that the period of limitation should commence from the date of payment. The theory of a fresh charge found favour with their Lordships in ‘1922 All 153(2) (AIR V 9) (O)’, which was, however, doubted in ‘Aziz Ahmad Khan v. Chote Lal’, 1928 All 241 (AIR V 15) (Z5) and ‘1933 All 908 (AIR V 20) (X).

134. In ‘1936 All 33 (AIR V 23) (FB) (N)’, Sulaiman, C.J said that when the right of subrogation arose before the mortgage had merged into a mortgage decree, the subrogee got no fresh charge; but that when it arose after decree, the subrogee got a statutory right which gave him a sort of charge, I say this with great respect, but this view does not find any support from the words used in Section 92 of the Transfer of Property Act.

135. In ‘1945 All 239 (AIR V 32) (FB) (Q)’, the reasoning of Sulaiman, C.J was carried to its logical conclusion, namely, that whether subrogation arose before or after decree, a fresh statutory right arose & limitation began in both cases from the date of payment. As I have said, there is no warrant for the view that S. 92 creates a statutory Tight which gives some sort of a fresh charge.

136. If S. 92 is to be regarded as giving such a statutory right, there is no reason why old S. 74 was to be regarded otherwise; nor can there be any reason why there should be any difference between a predecree subornation and a post-decree subrogation which difference was recognised by Sulaiman, C.J

137. I do not, therefore, subscribe to the view that time begins to run from the date of payment of the decree. It runs, as laid down in Article 132 of the Limitation Act, from the time “when the money sued for becomes due”. The money sued for becomes due on different dates, according as payment is made before a decree is passed or after decree.

138. If the view is accepted that limitation runs from the date of accrual of the cause of action on the mortgage deed itself, then the subrogee gets more than the right of a prior mortgagee; for the subrogee can then enforce the right under the mortgage which might be greater than the right of the mortgagee-decree-holder, e.g as to interest etc.; on the other hand, in many cases it will not give any enforceable right to the subrogee, for the suit on the mortgage may be barred at the time payment of the decretal amount is made.

139. On a careful consideration of the whole question, I subscribe to the view expressed by Wallace, J. in ‘1925 Mad 80 (AIR V 12) (S)’, by Chatterji, J. in ‘1943 Pat 305 (AIR V 30) (F)’, & by Mukherji, J. in ‘1945 Cal 194 (AIR V 32) (R)’. That view in my opinion, correctly expresses the true scope and effect of Section 92 of the Transfer of Property Act and reconciles the substantive right given to a subrogee under Section 92 of the Transfer of Property Act with the law of procedure relating to the enforcement of that right, without doing violence to the language used in S. 92 or Article 132.

140. By reason of the purchase from defendant 14, who had purchased a portion of the mortgaged properties, it was submitted before us that the plaintiffs were also in the position of a co-mortgagor, and our attention was drawn to a decision of this Court in ‘1945 Pat 192 (AIR V 32) (Z3). It was held therein that a co-mortgagor on redeeming the mortgage acquires a charge on the share of the other co-mortgagor in addition to the right of subrogation and that consequently when a co-mortgagor pays off the decretal amount due under the mortgage decree, he becomes an assignee in equity of the mortgage bond; and if a suit on the bond is barred and the security becomes worthless, he can obtain a decree for sale in enforcement of his charge on the share of the other co-mortgagor if his suit has been filed within twelve years from the date of payment. It is not for us to determine the question of fact if the plaintiffs-respondents are co-mortgagors. We are confined to answering the questions which have been referred to the Full Bench. The second question referred to the Full Bench relates to the right of subrogation under Section 92 of the Transfer of Property Act and that is the question to which I have applied my mind. I may point out, however, that if the view expressed by me is correct with regard to the period of limitation governing a suit for enforcing the right of a subrogee, there is really no necessity of extracting by a process of interpretation of the provisions of the Transfer of Property Act on the basis of a supposed intention of the Legislature, a statutory charge in favour of a co-mortgagor redeeming the mortgage; for the co-mortgagor like any other subrogee will have a better security than a mere charge on the share of the other co-mortgagor.

D.H.Z

141. Answers accordingly.