Turner and Oldfield, JJ.
1. Mahtab Singh, Balwant Singh, and Naubat Singh, the respondent, held mauza Darni in equal one-third shares and Mahtab Singh also held a 21/2 biswa share in mauza Atwa. On the 3rd January 1863, Mahtab Singh and Balwant Singh hypothecated their share in mauza Darni to secure a loan advanced by Ladli Begam. On the 16th March 1870, Mahtab Singh, Balwant Singh, and Naubat Singh hypothecated mauza Darni to the appellant to secure a loan of Rs. 600, and by another deed executed on the same date the same persons hypothecated mauza Darni, and Mahtab Singh his 21/2 biswa share in mauza Atwa, to the appellant to secure a loan of Rs. 1, 600. On the 8th December 1875, Ladli Begam obtained a decree for the sale of the shares of Mahtab Singh and Balwant Singh in mauza Darni for the satisfaction of the mortgage debt to her. These shares were accordingly sold on the 23rd October 1876, and purchased by the appellant for Rs. 7,000. Of this sum Rs. 5,954-12-0 were applied to satisfy the decree held by Ladli Begam and the balance Rs. 1,322-4-0, after deducting Rs. 18 commission on the sale, were deposited in Court. On the 18th April, 1876, the appellant obtained a decree for the realisation of the mortgage-debts due to him by sale of mauza Darni and the 21/2 biswa share in mauza Atwa. In execution of this decree he might and it may be should have applied to the Court to pay to him the surplus remaining in Court after the satisfaction of the decree of Ladli Begam, but instead of so doing he attached and obtained payment of the sum of Rs. 1,322-4-0 in execution of a money-decree which he held against Mahtab Singh and Balwant Singh. On the 20th June 1877, the appellant in execution of his decree of the 18th April 1876, brought to sale the one-third share of Naubat Singh in mauza Darni and became the purchaser of that share for the sum of Rs, 2,600, the amount due under the decree being Rs. 5,004. On the 20th July, 1877, the appellant in execution of a money-decree against Mahtab Singh brought to sale the 21/2 biswa share belonging to Mahtab Singh in mauza Atwa, and although the property was knocked down to one Daya Ram was himself registered as the purchaser.
2. The respondent Naubat Singh filed the suit now before the Court in appeal, praying that the sum due by him under the mortgages of the 16th March, 1870, and the decree of the 18th April 1876, may be ascertained, and that on payment of the amount so ascertained the sale of his one-third share in mauza Darni may be set aside and the share declared redeemed.
3. The Subordinate Judge held that on the facts above stated the sale could not be set aside and dismissed the suit. The District Judge has reversed the decree of the Court of First Instance, and decreed that on payment of the respondent's share of the decree of the 18th April 1876, which by the way is not ascertained in the judgment, nor in the decree, the sale of the respondent's one-third share in Darni shall be set aside and the mortgage-debt redeemed.
4. We are compelled to hold that the sale of the one-third share of Naubat Singh cannot be set aside. If the respondent could have shown that there were grounds on which the sale should not have taken place, he should have resisted the order for sale, but in fact there were no grounds. He could not have shown that there was nothing due from him on the mortgages to which he was a party jointly with Mahtab Singh and Balawant Singh without any specification of their several liabilities. He might perhaps have called upon the Court executing the decree to have declared the amount outstanding on the decree reduced by the sum of Rs. 1,322-4-0, and had he brought into Court the amount found due the Court would have set aside the order for sale. The respondent would in that case also have been at liberty to make the owner of the 21/2 biswa share of Atwa contribute to the payment of any sum paid by him in excess of his own share of the mortgage-debt for which that property was pledged together with mauza Darni.
5. The respondent's one-third share of Darni was, however, sold and realised Rs. 2,600, and if it be shown that the proportionate share of the appellant's liability on the two mortgages does not amount to so much, he is entitled to recover one moiety of the excess paid on account of the mortgage for Rs. 1,600 as a contribution from mauza Atwa. It appears that the debts of Rs. 600 and Rs. 1,600 respectively amounted, with interest, etc., at the time the decree was executed, to Rs. 5,961-10-5. The debt of Rs. 600 was then swollen to Rs. 1,625-14-516/22 625-14-516/22 , and the debt of Rs. 1,600 to Rs. 4,335-11-11 16/22. The respondent's one-third share of the liability of Rs. 1,625-14-5 16/22 625-14-5 16/22 amounted to Rs. 541-15-5 20/22; the sharesof his co-debtors to Rs.l,083-14-11 18/22 The respondent's share of the liability for Rs. 4,335-11-11 16/22 amounted to Rs. 1,445-3-11 50/66 445-3-11 50/66 . After applying the Rs. 2,600 realised by the sale of the respondent's share to the discharge of these liabilities, it will be seen that a balance of Rs. 2,058-0-6 3/l2 remains, after discharging Rs. 541-15-5 20/22 his liability under the mortgage for Rs. 600; and after discharging from this balance Rs. 1,445-3-11 50/66 445-3-11 50/66 his liability under the mortgage for Rs. 1,600, a surplus of Rs. 612-12-6 22/66 612-12-6 22/66 ; he has a right to claim contribution from mauza Atwa to the extent of one moiety of this amount, viz., Rs. 306-6-3i. Although then we must reverse the decree of the Court below setting aside the sale, the respondent is entitled to a declaration that Rs. 306-6-3 1/6 are due as a contribution from mauza Atwa, and to interest on that sum from the date of sale at the rate of 12 per cent. per annum; and in order to avoid future litigation we consider it not improper to order in this suit that, in the event of that sum with interest to the date of payment not being paid within three months from the date of the decree, the respondent shall be at liberty to recover it by the sale of the 21/2 biswa share in Atwa or so much thereof as may be necessary to satisfy the debt. We order that the respondent bear his own costs and pay two-thirds of the costs of the appellant in all Courts, the costs so awarded are to be set off against so much of the amount declared due to the respondent under the decree.