1. This appeal arises out of a suit for sale on a mortgage dated 8th March 1919, and the sole question for consideration in the appeal is whether or not the Courts below were right in holding that defendants 8 to 10 had acquired the rights of a prior mortgagee of the year 1919 and were entitled to hold up that mortgage as a shield against the claim of the plaintiff-appellant. The facts are as follows:
One Muqaddam mortgaged his property in the year 1913 by means of a deed of simple mortgage to one Murlidbar. He again mortgaged the same property in the year 1919 to the plaintiff-appellant. Muqaddam's brother Pir Baksh also joined in the execution of the mortgage of 1919, but I am not concerned in the present appeal with the share mortgaged by Pir Baksh. Murlidhar put his mortgage into suit and obtained a preliminary decree in the year 1925 and a final decree in the year 1926. The final decree was for a sum of Rs. 539-4-6 with future interest at six per cent, per annum. After Murlidhar obtained the final decree for sale Muqaddam's equity of redemption in the mortgaged property was sold in execution of a simple money decree and purchased by Babu Ram, the predecessor-in-title of defendants 8 to 10. Babu Ram paid a sum of Rs. 539-4-0 to Murlidhar on 22nd January 1928, in satisfaction of ??? final decree held by him (Murlidhar). ??? had not impleaded the ??? plaintiff in the suit for sale brought ??? him and the present plaintiff there ??? was not debarred from putting his ??? into suit.
2. Babu Ram died before the suit giving ??? to the present appeal was filed and ??? plaintiff impleaded amongst other defendants 8 to 10, the successors-interest of Babu Ram, on the allegation at they were subsequent transferees of ??? mortgaged property. These defendants contested the suit on the allegation at by paying up the decretal amount Murlidhar they had acquired the ??? of Murlidhar as prior mortgagee, ??? as such, the plaintiff was not ??? to sell the property for the ??? of the amount due to him with ??? first paying to them the amount ??? on the basis of the prior ??? of 1919. This contention of the ??? has been accepted by both the ??? below.
3. It is contended by the ??? counsel for the plaintiff-appellant that as the amount due on the basis the final decree in the year 1928, ??? the payment was made by Babu ??? far exceeded the sum of Rupees 9-4-0 the mortgage of Murlidhar was ??? redeemed in full by Babu Ram. It therefore argued that the right of ??? was not acquired by Babu Ram. In support of this contention ??? placed on the last paragraph of 92 of the Transfer of Property Act which provides that:
Nothing in this section shall be deemed to ??? a right of subrogation on any person unless ??? mortgage in respect of which the right is ??? has been redeemed in full.
4. The argument is that in order to ??? the right of subrogation conferred ??? S. 92 Babu Ram should have paid to ??? the entire amount mentioned the final decree together with interest ??? by that decree. This ??? in my opinion, is untenable. All ??? is necessary to confer the right of ??? is that the mortgage in respect of which the right is claimed should have been redeemed in full. It is not necessary that the entire amount due on ??? basis of the mortgage should be paid the mortgagee agrees to let the mortgage be redeemed on payment of a ??? amount. In the present case there ??? nothing to show that Murlidhar did ??? consent to let his decree stand satisfied on payment of sum of Rs. 539-4-0 only. This point was not raised in either of the Courts below and therefore the matter was not decided by those Courts. There is however the fact that the son of Murlidhar came in the witness-box and testified to the fact that his decree had been discharged. The mortgage of Murlidhar was therefore redeemed in full and defendants 8 to 10 were subrogated to the right that Murlidhar had on the basis of the mortgage of 1913. The decrees of the Courts below are therefore perfectly correct and accordingly I dismiss this appeal with costs.
B.D
5. Appeal dismissed.
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