Chatterji, J.:— This appeal arises out of a suit for contribution brought by certain puisne mortgagees who paid off a decree on a prior simple mortgage. The prior mortgage, which was for Rs. 2,200, was executed on the 7th May, 1917, by the defendant 1st party (defendant no. 1) in favour of defendants 9th party (defendants 26 to 32) in respect of 45 bighas 13 kathas 18 dhurs of brit land described in Schedule I of the plaint. The defendants 9th party brought a suit (no. 23 of 1930) on their mortgage impleading, besides the mortgagor, the plaintiffs, defendants 2nd, 3rd, 4th and 5th parties (defendants 2 to 8, defendants 9 to 13, defendants 14-15 and defendants 16 to 19, respectively), defendants 10th, 11th and 12th parties (defendants 33 to 46, defendants 47 to 51 and defendants 52-53, respectively), as subsequent transferees, the plaintiffs, defendants 2nd to 4th parties and defendants 10th to 12th parties being subsequent mortgagees (zerpeshgidars) and defendants 5th party being transferees under a mokarrari deed, dated the 3rd January, 1918, executed by the mortgagor in respect of 7 bighas out of the mortgaged 45 bighas 13 kathas 18 dhurs. In that suit a compromise decree was passed on the 5th August, 1932, to this effect that the decree would be satisfied if Rs. 8,500 was paid within seven months, that is to say, by the 5th March, 1933, and in the event of non-payment of this amount by that date, there would be a decree for Rs. 20,300 to be realised by the sale of the mortgaged property. On the 4th March, 1933, the plaintiffs and defendants 11th and 12th parties deposited the sum of Rs. 8,500 in terms of the decree, and the decree was thereby satisfied. Out of this Rs. 8,500 defendants 11th party contributed Rs. 180 and defendants 12th party Rs. 105 and the plaintiffs paid the balance Rs. 8,215.
Subsequent to the said mortgage decree defendant 6th party (defendant no. 20), defendant 7th party (defendant no. 21) and defendants 8th party (defendants 22 to 25) took mortgages (zerpeshgis) from defendants 5th party in respect of portions of the mokarrari lands. After the payment of the said mortgage decree, defendants 9th party purchased the entire mortgaged property in execution of a money decree of their own.
The present suit was brought on the 13th February, 1939. It is stated in the plaint that the defendants 2nd to 8th parties are liable to contribute towards payment of the decretal amount Rs. 8,500 in proportion to the quantity of lands in their possession. It is also stated that defendants 9th party are liable for the entire sum. An account of the respective liabilities of the defendants is given in Schedule III of the plaint.
The prayer in the plaint runs as follows:—
“(i) The court may be pleased to pass a decree for the principal and interest mentioned in schedule no. 3 against the different sets of defendants making it a charge on the properties owned and mortgaged by them on the lines specified in schedule no. 3, aforesaid and on passing a decree in respect of the said charge and (?) the different sets of defendants mentioned in schedule no. 3, aforesaid, may be made liable for the payment of the decree (passed) against them together with costs in court.
(ii) If in the opinion of the court the account of the quota of contribution mentioned in the schedule no. 3 be not fit to be accepted by the court, then a decree may be passed in favour of the plaintiffs in the manner in which the court deems proper against such defendants for such amount in respect of such property as may be deemed liable by the court, but if the court thinks it proper to pass a decree separately against the different sets of defendants in respect of (different) items mentioned in schedule no. 3 and the court thinks it unfair to pass a decree jointly, then separate decrees may be passed in favour of the different sets of plaintiffs in respect of such items as the court may deem proper.
(iii) Such other reliefs as the court deems the plaintiffs entitled to may be decreed to them.”
The suit was contested by the defendants second to eighth parties and some of the defendants of the 10th party on the grounds, inter alia, that the suit was barred by limitation, that the account of liabilities given in schedule 3 of the plaint was not correct, that if the plaintiffs' claim for contribution was tenable, the entire money should be distributed over the entire mortgaged property, that the plaintiffs have no charge over the property in respect of their claim for contribution, and that the defendants 5th party are kashtkars and consequently neither they nor the defendants 6th to 8th parties are liable for the claim.
From the original plaint it appears that at the end of prayer (i) there were certain words which were scored through. These words have been translated as follows:—
“and a time be fixed for payment with an order that in case of non-payment the decree with costs and interest shall be realised by sale of the properties shown against the liable defendants in schedule no. 3.”
In the course of the hearing of the suit, the plaintiffs filed a petition for amendment of prayer (i) so as to include a prayer for sale, alleging that the words which appeared to have been scored through were written over lines drawn by mistake. The Subordinate Judge by his order, dated the 8th August, 1939, refused the prayer for amendment.
At the hearing, however, the plaintiffs' pressed their, claim on the basis of subrogation. The learned Subordinate Judge allowed this claim. He held that the suit, if it was to be treated as a suit for contribution, was barred by the three years' rule of limitation under Article 99 of the First Schedule to the Limitation Act, but being really a suit to enforce the right of subrogation, it was within time as it was brought within 12 years from the date of the payment of the mortgage decree. As regards the kashtkari rights pleaded by defendants 5th, 6th, 7th and 8th parties, he held that it was not necessary to decide in this suit whether such rights would be affected by the decree passed in the suit. In the result he passed a decree in the following terms:—
“That the suit be decreed with costs. Let a preliminary decree for sale be passed in favour of the plaintiffs for the sum of Rs. 8,215 with interest thereon at 9 per cent per annum from 4th March 1933 to the date of the suit (but not exceeding the amount claimed) besides interest at the same rate from the date of the suit until the expiry of six months from this date together with costs of the suit including pleader's fee at 5 per cent. If the amount is not paid within the said period of grace the property covered by the mortgage decree (ext. 17) and specified in the plaint namely the brit lakhraj rights in 45 bighas 13 kathas 18 dhoors in mouza Patni T. no. 951 will be sold, with the exception of the interest of the defendants 11th and 12th parties therein. The question whether the kasht rights of any other defendants will be affected by the sale if it takes place does not require adjudication in this suit. Interest on the decretal dues after the period of grace will run at 6 per cent per annum until realisation.”
Against this decree defendants 2nd to 8th parties have preferred this appeal.
The first point taken by Mr. B.C De on behalf of the appellants is that having regard to the frame of the suit, and particularly to the reliefs claimed, the learned Subordinate Judge was not justified in treating the suit as one to enforce the right of subrogation. It is said that though he rejected the petition for amendment of the plaint, he proceeded to pass a decree as if the amendment had been allowed. It is true that the plaint is very inartistically drawn, but it contains a statement of all the material circumstances and it is fairly clear that what is really claimed by the plaintiffs is the enforcement of the right acquired by them by virtue of the payment of the mortgage decree. In paragraph 5 of the plaint it is stated that
“the plaintiffs have got a sort of charge over the said properties for the said proportionate amount of which details are given in schedule no. 3”.
In prayer (i) they asked for
“a decree in respect of the said charge”.
Thus the plaintiffs were really seeking to enforce payment of money charged on the property covered by the mortgage decree. In other words, they were really seeking to enforce the right of subrogation. They, however, split up the mortgage and claimed contribution from the defendants in proportion to the quantity of lands in their respective possession. This was rather to the advantage of the defendants. When necessary facts are stated in the plaint which, if established, entitle the plaintiffs in law to obtain certain reliefs, it is open to the Court to grant them such reliefs; although the reliefs specifically asked for may be inartistically framed. In this case the facts asserted by the plaintiffs, which would entitle them in law to the right of subrogation, are not disputed. It is, therefore, open to the Court to grant them appropriate reliefs on the basis of subrogation. I do not, therefore, consider that the learned Subordinate Judge was wrong in giving the plaintiffs reliefs on the basis of subrogation.
But at the same time I must observe that the decree in the form in which the Subordinate Judge has passed it is not justified by the terms of the plaint. The plaintiffs definitely split up the mortgage and apportioned the liability of the defendants according to the quantity of lands in their respective possession. Such apportionment is not inconsistent with the right of subrogation. The subrogee, instead of enforcing his right of subrogation in respect of the entire mortgage as an indivisible whole, may well split up the mortgage and distribute the mortgage liability over different portions of the mortgaged property in the respective possession of different subsequent transferees. The plaintiffs in this suit, having split up the mortgage and distributed the mortgage liability, the learned Subordinate Judge, in my opinion, was not justified in passing a decree for sale of the entire mortgaged property for the entire amount without apportioning the liability. As to the form of the decree that ought to be passed in the circumstances of the case, I shall deal with it later.
The next point urged by Mr. B.C De is that having regard to the terms of section 92 of the Transfer of Property Act, the plaintiffs by paying up the mortgage decree could not acquire the right of subrogation. It is conceded on both sides that section 92, as it now stands, will govern the rights of the parties in this case. The first paragraph of the section runs as follows:—
“Any of the persons referred to in section 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 if such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.”
Mr. B.C De's contention is that the expression “the same rights as the mortgagee whose mortgage he redeems may have” implies that it cannot apply to a case where the mortgagee has already obtained a decree on his mortgage. In support of this contention he relies on the decision of the Allahabad High Court in Piarey Lal v. Dina Nath in which the view was expressed that “Section 92 uses language which appears to postulate an existing mortgage and not a mortgage which has merged in a decree”. This view is directly opposed to the decision of the Privy Council in Gopi Narain Khanna v. Babu Bansidhar. In that case the right of subrogation claimed was based on the payment of a decree on a prior mortgage and their Lordships upheld the claim. Their Lordships applied the old section 74 of the Transfer of Property Act which stood as follows:—
“Any second or other subsequent mortgagee may, at any time after the amount due on the next prior mortgage has become payable, tender such amount to the next prior mortgagee, and such mortgagee is bound to accept such tender and to give a receipt for such amount; and (subject to the provisions of the law for the time being in force regulating the registration of documents) the subsequent mortgagee shall, on obtaining such receipt, acquire, in respect of the property, all the rights and powers of the mortgagee, as such to whom he has made such tender.”
Their Lordships specifically referred to the words
“all the rights and powers of the mortgagee, as such”
of the section. In effect there is no difference between these words and the words
“the same rights as the mortgagee whose mortgage he redeems may have”
in the present section 92.
It is to be observed that this decision of the Privy Council [Gopi Narain Khanna's Case] was not noticed, in the Allahabad case [Piarey Lal's Case]. The Privy Council decision is conclusive on the point. It therefore follows that the plaintiffs in the present suit acquired the right of subrogation by paying off the mortgage decree.
The next point argued by Mr. B.C De is that even treating the suit as one to enforce the right of subrogation, it must be held to be barred by time, because it was brought more than 12 years after the money payable under the original mortgage became due. It is not disputed that if limitation be computed from that date the suit is out of time. The learned Subordinate Judge has held that limitation would run not from the date when the money payable under the original mortgage became due, but from the date of payment of the mortgage decree, that is to say, from the 4th March, 1933. He relied on the decision of this Court in Dulhin Kamlapati Devi v. Jageshar Dayal and on the Full Bench decision of the Allahabad High Court in Alam Ali v. Beni Charan. Mr. B.C De relies on the of Syed Mahomed Ibrahim Hossein Khan v. Ambika Persad Singh, Sibanand Misra v. Jagmohan Lall, Umar Ali v. Asmat Ali and Mamillapalli Kotappa v. Pamidipati Raghavayya.
In the Privy Council case of Syed Mahomed Ibrahim Hossein Khan v. Ambika Persad Singh the facts, briefly stated, were these: There were successive mortgages in respect of certain properties, the earliest being for Rs. 12,000 under a zerpeshgi deed, dated the 20th November, 1874, and the latest being for Rs. 12,000 under a simple mortgage bond, dated the 17th February, 1888. The money under the zerpeshgi deed was repayable at the end of Jeth 1294 Fasli (June, 1887—‘September, 1887’, in the judgment is a mistake). The zerpeshgi was redeemed on the 15th July, 1888, with the money borrowed under the last mortgage of the 17th February, 1888. The assignee of the last mortgage brought a suit to enforce it on the 22nd September, 1900, claiming priority in respect of the zerpeshgi against certain intermediate mortgagees who were impleaded in the suit. The intermediate mortgagees themselves had already sued on their respective mortgages and obtained decrees in execution of which the respective mortgaged properties were sold. To all these decrees except one the last mortgagee was a party. Their Lordships held that in the suit on the last mortgage the claim for priority in respect of the zerpeshgi was barred by constructive res judicata as against those intermediate mortgagees in whose suits the last mortgagee was made a party. As against the remaining intermediate mortgagee who in his suit failed to implead the last mortgagee the latter's claim for priority, though otherwise tenable, was held to be barred by limitation. Their Lordships observed as follows. “But as the Rs. 12,000 were under the zerpeshgi deed of the 20th of November, 1874, repayable in Jeth, 1294 Fasli (September 1887), and this suit was not brought until the 22nd of September, 1900, the claim of the plaintiffs to priority is barred by Article 132 of the Second Schedule of the Indian Limitation Act, 1877”. It is thus clear that the mortgage under the zerpeshgi deed of the 20th November, 1874, in respect of which the right of subrogation was claimed had not ripened into a decree.
In my view there is a clear distinction between a case where the prior mortgage in respect of which subrogation is claimed has not been sued upon and the case where the mortgage has been sued upon and a mortgage decree obtained and subrogation is claimed by reason of paying off the mortgage decree. In either case the subrogee acquires the rights of the mortgagee whom he has paid off; he cannot acquire any higher rights. In the former case he may enforce his rights by a suit, and the suit will be based on the cause of action on the original mortgage. Consequently limitation for such suit will run from the date when the cause of action on the original mortgage arose. This was the case before the Privy Council in Mahomed Ibrahim's case cited above. In the latter case, that is, where the mortgage had merged in a decree, the subrogee cannot sue to enforce the original mortgage, because the cause of action on that mortgage is extinct. No fresh suit will lie on that mortgage. The subrogee acquires the rights of the original mortgagee as determined by the decree, and he can only enforce those rights. Indeed by subrogation he steps into the shoes of the mortgagee decree-holder. But he cannot adopt the same remedy, as the decree-holder could, in enforcing the rights under the decree. The remedy of the decree-holder was to execute the decree. But this remedy is not available to the subrogee, because, in the first place, the decree has been satisfied and is no longer executable, and, in the second place, the executing Court which cannot go behind the decree cannot, in the absence of any provision in the decree in that behalf, work out the right of subrogation which will really involve determination of questions between the judgment-debtors inter se. The subrogee's remedy to enforce the rights under the decree, therefore, is to bring a suit.
That such a suit is maintainable was definitely held by the Privy Council in the case of Gopi Narain Khanna v. Babu Bansidhar, already cited. In that case a foreclosure decree on a prior mortgage was paid off by a subsequent mortgagee who was a party to the decree, and by virtue of his right of subrogation thereby acquired, he wanted to be substituted in the place of the decree-holder and to continue the proceeding, but he was not permitted to do so on the ground that the decree was satisfied and the proceeding came to an end. He then brought a suit to enforce his right of subrogation and this suit was decreed by their Lordships. Their Lordships passed a decree so as to work out the rights of the parties on the basis of the previous mortgage decree. Of course, the question of limitation did not arise in that case, but it is quite clear from their Lordships' decision that the subsequent suit brought to enforce the right of subrogation was not treated as one based on the original mortgage. Their Lordships said (at page 133): “And their Lordships think that on payment by Gaya Prasad (the puisne mortgagee) of the sum into Court before the expiry of the enlarged time, and acceptance of that sum by the plaintiffs, the decree was spent and became discharged and satisfied. There was, therefore, nothing left to be done in the execution department. It is true that Gaya Prasad 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 the terms of it had become discharged. Even if that were not so, their Lordships fail to see how the respective rights of Gaya Prasad, as owner of the first mortgage and half owner of the second mortgage, and the respondent as owner of the other moiety of the second mortgage, could have been worked out without additions to the decree which the Court in executing the decree had no power to make. They are, therefore, of opinion that a new decree was required for the purpose, and section 244 of the Civil Procedure Code was not a bar to the present suit.” The words “a new decree was required for the purpose” are very significant, and suggest that the rights under the previous decree are to be worked out by a new decree so as to give effect to the right of subrogation. Their Lordships' observation “the decree was spent and became discharged and satisfied” does not mean that their Lordships intended to hold that the discharge and satisfaction of the decree had the effect of reviving the cause of action on the original mortgage which had become extinct. The question before their Lordships was whether the suit was barred under section 244 of the old Civil Procedure Code (now section 47), and what their Lordships meant was that the decree, after it was satisfied, was no longer alive for the purpose of execution and not that the decree was completely wiped out as if it had never come into existence. It will be noticed that their Lordships in passing a decree for foreclosure in favour of the plaintiff Gaya Prasad (the subrogee), who by virtue of a decree for foreclosure on a subsequent mortgage had in the meantime become the owner of a half share in the mortgaged property, directed the defendant, who had also by virtue of the same foreclosure decree become the owner of the remaining half share in the mortgaged property, to pay to the plaintiff one moiety of Rs. 15,093, being the sum paid by the plaintiff in satisfaction of the prior foreclosure decree, with future interest from the date of payment. This direction in the decree is inconsistent with the claim being regarded as based on the original mortgage.
In the case of Sibanand Misra v. Jagmohan Lall the facts were these: A puisne mortgagee obtained a decree on his mortgage in execution of which he purchased the mortgaged properties. The judgment-debtors made an application under Order 21, rule 90 of the Civil Procedure Code, to set aside the sale. Pending that application the decree-holder paid off a decree on a prior mortgage which had in the meantime been put to execution. The proceeding under Order 21, rule 90, ended in a compromise by which the sale was set aside on the judgment-debtors paying the decretal amount. The puisne mortgagee then brought a suit against the mortgagors to enforce the prior mortgage by right of subrogation, or, in the alternative, for a personal decree against them. The claim to enforce the prior mortgage was dismissed as barred by limitation as the suit was brought more than 12 years after the accrual of the cause of action on that mortgage. Their Lordships based their decision on the Privy Council case of Syed Mahomed Ibrahim Hossein Khan v. Ambika Persad Singh. Das, J., who delivered the judgment (Coutts, J. agreeing), said. “But the right to enfore a security by virtue of subrogation is a right which equity concedes to a person who, not being primarily liable to discharge an obligation, does discharge it, and it is a right to demand the performance of the original obligation and the application thereto of all securities held by the creditor. It is a claim which is enforced in the right of the original creditor, and only because the person discharging the obligation becomes clothed with the rights and powers of the original creditor. The subrogee is an assignee in equity, and it is difficult to understand how an assignee in equity stands on a better footing than an assignee at law. If, for instance, a creditor assigns his security for valuable consideration to a person who thereupon sues upon the security, it cannot be argued that, though the right to enforce the security in the hands of the creditor may be barred by limitation, the assignee may proceed to enforce it if he brings his suit within twelve years from the date of the assignment.” From the report it appears that the suit by the puisne mortgagee was to enforce the prior mortgage. If that was so, the observations of Das, J. are perfectly intelligible. Those observations, however, would not apply if the suit were to enforce not the original mortgage but the rights under the mortgage decree that was paid off. The prior mortgagee had no right to bring a fresh suit on the original mortgage after he had once obtained a decree on it. The second suit by the puisne mortgagee, therefore, could not be said to have been brought by him “in the right of the original creditor”. The Privy Council case of Gopi Narain Khanna v. Babu Bansidhar, cited above, which to my mind, furnishes a clue to the solution of the problem before us, was not referred to in the judgment of Das, J. That being so, I do not think it necessary to refer the matter to a Full Bench.
In the case of Umar Ali v. Asmat Ali the question for decision before the Full Bench was “whether a suit by a redeeming co-mortgagor for contribution instituted beyond the period within which the original mortgagee could institute his suit on the mortgage, had it not been redeemed, is barred”. The Full Bench held that the suit was not barred. Their Lordships decided the case with reference to the provisions of old section 95 of the Transfer of Property Act. Rankin, C.J, who delivered the opinion of the Full Bench, however, observed “It may here be observed that section 95 of the Transfer of Property Act, has, by Act XX of 1929, been amended in such a way that sections 92, and 95, as they now stand, make it clear that the right of the co-mortgagor redeeming is the ‘same right as the mortgagee whose mortgage he redeems may have against the mortgagor’. In effect, therefore, the decision in Rajkumari's case is now statute law”. In Rajkumari's case it was held that a similar suit by a redeeming co-mortgagor would be barred. Mr. B.C De relies on the above quoted observations of Rankin, C.J But the facts of the present case are quite different and those observations have no application here.
In the case of Mamillapalli Kotappa v. Pamidipati Raghavayya the facts were that a puisne mortgagee paid off a decree on a prior mortgage and thereafter a suit for redemption was brought by the mortgagor to redeem the puisne mortgage more than 12 years after the cause of action on the prior mortgage arose but within 12 years from the date when the puisne mortgagee paid off the prior mortgagee's decree. The puisne mortgagee claimed that he should be paid, in addition to his own mortgage money, the amount which he had paid in satisfaction of the prior mortgagee's decree. His claim for the additional amount in respect of the prior mortgage decree was disallowed on the ground that it was barred by limitation. Madhavan Nayar, J., who delivered the leading judgment, (Wallace, J. concurring by a separate judgment), after referring to the decision in Gopi Narain Khanna's case, cited above, said “If the second mortgagee thus gets his right by subrogation under section 74 even in a case where the first mortgagee has been paid off after a decree, then it follows that he as subrogee can exercise the rights of the prior mortgagee only within the period of limitation allowed to him. The fact that a decree has been passed and the mortgage has become merged in a decree does not therefore make any difference. The obtaining of a decree does not put an end to the charge on the property; after the passing of the decree the charge attaches itself to the decree and the puisne mortgagee by making the payment gets entitled by virtue of section 74 of the Transfer of Property Act to enforce that charge.” With the greatest respect I am unable to agree with this view. It is true that the obtaining of a mortgage decree does not put an end to the charge on the property; but does it not put an end to the cause of action on the original mortgage? And if the cause of action is extinct, how is it revived? In the Privy Council decision in Govt. Narain Khanna, so far as I can see, there is nothing to suggest that upon the decree being discharged and satisfied the cause of action on the original mortgage is revived so as to entitle the subrogee to sue to enforce the original mortgage. To hold that the suit to enforce the right of subrogation arising by virtue of payment of the mortgage decree is a suit to enforce the original mortgage would really be giving the subrogee a higher right than the original mortgagee. After the decree the original mortgagee certainly could not lay any claim on the basis of the original mortgage. The amount due under the mortgage is finally determined by the decree, and after the decree the mortgagee is not entitled to claim interest at the contract rate. But the subrogee, if his suit is to be regarded as based on the original mortgage, can claim interest at the contract rate not only up to the date of his suit, but to the date of payment fixed by the decree to be passed in his suit. Take, for instance, a case where the contract, rate of interest is 15 per cent per annum compoundable at the end of every year and the suit by the original mortgagee is brought within six years and a mortgage decree is obtained within a few months from the date of the suit. That decree is paid off by a puisne mortgagee who is a party to it and then he brings a suit to enforce the right of subrogation just within 12 years from the date when the money payable on the original mortgage became due. In such a case the subrogee would get a decree for a much higher amount than what the original mortgagee was entitled to under his mortgage decree, because his decree, if it at all carried any future interest, must have limited it to the Court rate. Such a position will be wholly inconsistent with the doctrine of subrogation. In my opinion the subrogee's suit, where he claims subrogation by paying off a mortgage decree, can on no account be regarded as a suit to enforce the original mortgage which had merged in the decree. On the question of limitation it may be asked why, if the mortgagee decree-holder gets 3 years to execute the decree, the subrogee will get a higher period to bring a suit. The answer is that in one case, it is an application for execution and in the other it is a suit. In each case limitation must be determined with reference to the provisions of the Limitation Act. That Act makes different provisions for suits and applications. Even on the view taken by Wallace and Madhavan Nayar, JJ., different periods of limitation are to be applied; in the case of the mortgagee decree-holder it is 3 years from the date of the decree, while in the case of the subrogee it is 12 years from the due date under the original mortgage.
On the other hand in the case of Alam Ali v. Beni Charan it was held by Sulaiman, C.J and Bennet, J. (Ganga Nath, J. dissenting) that in a suit by a puisne mortgagee to enforce the right of subrogation acquired by him by paying off a prior mortgagee's decree, limitation would run not from the date when the money payable on the prior mortgage became due, but from the date of payment of the mortgage decree. Sulaiman, C.J pointed out the distinction between such a case and the case where the mortgage has not been sued upon. He said “But where a suit had already been brought on the original mortgage and had ripened into a mortgage decree, the mortgage merged into the decree and the powers and rights of the mortgagee decree-holder were those under the decree, which was alive at the time and which gave him a priority over subsequent encumbrancers and entitled him to recover his amount by sale of the property without any bar of limitation. The payment of such a decree conferred on the subsequent encumbrancer all the rights and powers of the mortgagee decree-holder as then subsisting, though the procedure to be followed by him had to be different.” This decision supports the view I have taken, though I doubt if the starting point for limitation will be the date of payment of the mortgage decree. I think it is more logical to hold that limitation will run from the date fixed by the decree for payment. However, I do not consider it necessary to express any final opinion on this point at present.
In the case of Dulhin Kamlapati Devi v. Jageshar Dayal to which I was a party, I took the same view, but I think I was not quite correct in saying that the cause of action for a suit to enforce the right of subrogation would arise from the date when the prior mortgage decree was paid off. Of course, if limitation were to be governed by Article 120, the date of payment of the prior mortgage decree would undoubtedly be the starting point.
If this suit be treated as one to enforce the rights under the decree, as it must be in view of the said Privy Council decision in Gopi Narain Khanna, it necessarily follows that limitation must run not from the date when the cause of action on the original mortgage arose, because that cause of action is extinct, but from the date when the money was payable under the decree. The decree being a mortgage decree, the suit is undoubtedly one to enforce payment of money charged on immovable property within the meaning of Article 132 of the First Schedule to the Limitation Act. The money sued for became due on the date fixed by the decree for payment, that is, the 5th March, 1933. Therefore, the suit is within time. But assuming that Article 132 does not apply, there can be no doubt that the residuary Article 120 will apply. That article which refers to a
“Suit for which no period of limitation is provided elsewhere in this schedule”
prescribes 6 years from the date
“when the right to sue accrues”.
The right of subrogation unquestionably accrued on the date of payment, i.e, the 4th March, 1933, and the present suit, being brought on the 13th February, 1939, is within time under Article 120.
Mr. B.C De contends that this, being a suit for contribution, will be governed by Article 99. That Article refers to a suit.
“For contribution by a party who has paid the whole or more than his share of the amount due under a joint decree, or by a sharer in a joint estate who has paid the whole or more than his share of the amount of revenue due from himself and his co-sharers,”
and prescribes 3 years from
“the date of the payment in excess of the plaintiff's own share”.
In my view this Article applies to a suit for contribution in respect of a joint personal decree. It does not apply to a case where the liability is not personal, but attaches to immovable property. Here the mortgaged property is proportionately liable and though in one sense the persons in possession of different portions of the property are liable to contribute to the amount of the mortgage decree, it is really the liability of the property. The expressions
“his share”
in column one and
“the plaintiff's own share”
in column three of Article 99 suggest that this Article does not apply to a suit for contribution in respect of liability attaching to immovable property. This view receives support from the decisions in Yakub Ali Khan v. Kishen Lal and Rani Bhubaneshwari Kuer v. Manir Khan.
For the aforesaid reasons I am of opinion that the plaintiffs are entitled to reliefs on the basis of subrogation and that the claim is not barred by limitation.
The next objection taken is that the defendants 5th party are mokarraridars in respect of 7 bighas and kashtkars in respect of about 3 bighas out of the mortgaged lands, and that their rights are not affected by the previous mortgage decree, and therefore they are not liable for the plaintiffs' claim. Admittedly the mokarrari settlement of the 7 bighas and the settlement of the 3 bighas were made after the mortgage in favour of the defendants 9th party. It appears that the defendants 5th party were impleaded in the mortgage suit brought by the defendants 9th party, and the suit was decreed against them as well. If the mortgage decree was passed against them, they are bound by it. As this question has not been gone into by the Court below and as the necessary papers have not been printed in this appeal, it is desirable that it should be determined by that Court as the case is going to be remanded. As regards defendants 6th to 8th parties, they are subsequent mortgagees from defendants 5th party and therefore their rights need not be determined separately from those of the defendants 5th party. For the purpose of this case the defendants 5th to 8th parties may be grouped together.
The question then remains as to the form of the decree. I have already indicated that the plaintiffs having split up the mortgage and distributed the mortgage liability over the different portions of the mortgaged property, the decree passed by the Court below cannot be supported. The defendants 2nd to 8th parties, who are sought to be made separately liable, are entitled to redeem the lands in their respective possession on payment of the proportionate amounts due on those lands, subject to this reservation that the defendants 5th to 8th parties, taken together, will be considered as one group and as between them there will be no apportionment of liability. As regards the defendants 9th party, the ownership in the entire mortgaged property having vested in them as purchasers of the equity of redemption, they would be liable for the entire amount of the decree paid, that is, Rs. 8,500. But the claim in this suit is limited to Rs. 8,215, being the proportionate amount paid by the plaintiffs. The defendants 11th and 12th parties, who paid the remaining amount of the decree and are themselves in the position of subrogees, have not joined as plaintiffs in this suit, and the amount due to them as subrogees has been excluded from the claim in this suit. No objection has been taken that the amount contributed by them does not represent the proportionate liability of the lands in their possession as puisne mortgagees. That being so, the equity of redemption held by the defendants 9th party in respect of these lands cannot be held liable for the plaintiffs' claim in this suit. The equity of redemption of the defendants 9th party in the remaining portion of the mortgaged property is liable for the entire claim of the plaintiffs. There will, therefore, be a preliminary decree for sale of the entire mortgaged property, excluding the lands in the possession of the defendants 11th and 12th parties, for Rs. 8,215 with interest as allowed by the Court below (to which, no exception has been taken before us), but the decree will specify the proportionate liability of the lands in the respective possession of the defendants 2nd party, defendants 3rd party, defendants 4th party and the defendants 5th to 8th panties (taken together). The liability will be in proportion to the value of the lands in the respective possession of these groups of defendants. If these groups of defendants or any of them pay the respective amounts found due in respect of the lands in their respective possession, there will be sale of the remaining portion of the mortgaged property after excluding such portions in respect of which the amounts, due have been paid. For instance, if the defendants 2nd party pay the amount due in respect of the lands in their possession, those lands will be excluded from sale and the remaining portion of the mortgaged property will be sold for the remaining amount. Similarly, if the defendants 3rd party pay the amount due in respect of the lands in their possession, those lands will be excluded from sale and the remaining portion of the mortgaged property will be sold for the remaining amount; and so on. As the Court below has not determined he proportionate liability of the lands in the respective possession of the parties, the case will go back. After determining the proportionate liability, the Court will pass a decree in accordance with the directions given above. It must be mentioned here that if it is held that the defendants 5th party are not bound by the previous mortgage decree, the question of their liability or of the liability of the defendants 6th to 8th parties will not arise. In that case the separate liability of the lands in the possession of this group of defendants (5th to 8th parties) need not be determined, unless they so desire. I must also observe that the plaintiffs themselves, being in possession of some of the lands as zerpeshgidars, are also liable in proportion to the value of those lands, but as the defendants 9th party are the purchasers of the equity of redemption, the separate liability of these lands need not be determined. The value of these lands, however, should be taken into account in assessing the proportionate liability of the remaining portions.
I would accordingly allow the appeal, set aside the decree of the Court below, and remand the suit for disposal according to law in the light of the observations made above. In the circumstances, there will be no order for costs in this appeal.
In the course of the hearing of the appeal the plaintiffs filed a petition for amendment of the plaint, so as to include a prayer for sale. In the view I have taken, the amendment is unnecessary. If, however, the amendment were necessary, I would allow it. There would, be no question of the cause of action or the character of the suit being altered or the defendants being taken by surprise.
Meredith, J.:— I agree.
Appeal allowed.
K.D