Charles Sargent, C.J.
1. The plaintiff seeks to recover the principal and interest due on a mortgage-bond, dated 24th January, 1878, which was passed to him to secure Rs. 199 by Sakhharam and Vishnu, two of the three sons of Put a jishet Potdar, deceased. Subsequently, on 28th July, 1878, Sakharam alone mortgaged some of thee same property to plaintiff to secure Rs. 200 and interest to be repaid in five years. Subsequently a partition took place between the sons, and Vishnu and the third son Narayan respectively mortgaged portions of the lands comprised in the mortgage of 24th January, 1878, which fell to their share together with others, to the third defendant, on 27th January 1882, and the 6th December, 1883.
2. In the meantime, the plaintiff had brought a suit on his second mortgage in 1881, and in execution of the decree which he obtained certain lands part of those mortgaged were put up at auction and purchased by himself, and satisfaction entered up of the mortgage-debt. We have already at the hearing expressed an opinion that the Assistant Judge was right in holding that the suit on the mortgage of 28th July, 1878, was not a bar to the maintenance of the present suit on the first mortgage, whether under Section 13 or 43 of the Civil Procedure Code; and it only remains to consider whether the appellant is right in his contention, that as the plaintiff by his present suit seeks to recover the mortgage-debt from the lands other than those purchased by him, a proportionate part of the mortgage ought to be deemed to have been satisfied.
3. The Assistant Judge relying on Vithal Nilkanth Pinjali v. Vishvasrav I.L.R. 8 Bom. 497 held that defendant would be entitled to relief for contribution, but that it must be by a separate suit, and that he could only redeem the property in the present suit by paying the entire mortgage-debt. The plaintiff by his purchase under the decree passed on the second mortgage acquired the equity of redemption in the lands included in that mortgage, and thus became, as regards the entire property included in the first mortgage, mortgagee as to the whole and mortgagor as to part.
4. Ram Dun Dhur v. Mohesh Chunder Chowdhury I.L.R. 9 Cal. 406 cited by Mr. Ganasham for appellant is an authority that a mortgagee will not be allowed, without special reason, deliberately to execute his decree exclusively against one of the owners of the equity of redemption for the whole debt, and in that case the mortgagee was restrained by the Court from executing it pending an enquiry directed as to how the debt should be apportioned. The principle of equity upon which that case proceeds, and which we think is a correct one, more especially in this country, is applicable to the present case where the mortgagee has himself become interested in the equity of redemption, and as all the parties are present, there is no reason why a similar inquiry should not be made in this suit to determine the sum on payment of which the third defendant is to be allowed to redeem, and in default of which the property should be sold. The case of Gaya Prasad v. Salik Prasad Gaya Prasad v. Gaya Prasad I.L.R. 3 All. 682 cited by Mr. Apte differs from the present inasmuch as there the sale was by private contract and there was nothing to show that the mortgagee did not pay the full value of the land without regard to the mortgage-debt.
5. We must, therefore, reverse the decree of the Court below, and refer it to the Court below to determine how the mortgagee-debt, Rs. 280-11-9, as found by the Assistant Judge, should be apportioned between the property, the subject of the suit, and the property purchased by the plaintiff, and what portion of it should be charged upon the former property. In the event of the defendants not paying the amount so found within six months after the Court below has recorded its finding, the property in suit to be sold and proceeds applied in or towards the payment of the sum so found, and in the event of the proceeds of the sale not being sufficient to satisfy the same, the first and second defendants to be personally liable for the balance of the debt. The defendants to have their costs of this appeal. Parties under the special circumstances of the case to pay their own costs in the Courts below.