John Stanley, C.J.
1. This second appeal arises out of a suit for redemption of a mortgage of the 2nd of August 1867 and the circumstances under which it was brought are as follows:
The predecessors-in-title of the plaintiffs borrowed money from one Kharagjit deceased, and as security there for, hypothecated their share in the village of Badhaula. The mortgage provided that if the mortgagors failed to re-pay the money borrowed in Jeth 1275 fasli, the mortgagee should be at liberty to take possession of the mortgaged property. Default was made in payment of the mortgage debt and the mortgagee took possession of the mortgaged property. Later on, namely, on the 3rd of July 1874, a further mortgage to secure a small sum was executed by the mortgagors in favour of Kharagjit. In that document, it is recited that the sum of Bs. 98, was duo by the mortgagors to Kharagjit and the executants thereby agreed to pay interest on that amount at the rate of Rs. 2 per cent, on demand. In order to secure the amount, the mortgagors hypothecated their share in the village in question in favour of the mortgagees, and then follow the covenant upon which the arguments in this case are mainly based. The covenant is as follows:'We shall re-pay the amount due under this bond, before payment of the mortgage money and redemption of the mortgage' (i.e., the earlier mortgage). The suit, out of which. this appeal has arisen, was brought for redemption of the mortgage of the 2nd of August 1867 alone, and the defence set up was that the mortgagors were bound to pay the amount due on foot of the subsequent mortgage of the 3rd of July 1874 along with or before payment of the moneys due on foot of the earlier mortgage of the 2nd of August 1867.
2. The Court of first instance decreed the plaintiffs' claim but upon appeal the learned Additional District Judge reversed its decision, holding that upon the language of the document of the 3rd of July 1874, the mortgagors were bound to satisfy the amount of that mortgage before they could insist upon redemption of the earlier mortgage.
3. The case before us has been argued at considerable length and ably, and numerous authorities have been cited to us. I do not think it necessary to review these authorities at length. I think that the learned Additional District Judge rightly decided the appeal before him. It is contended by Dr. Tej Bahadur on behalf of the appellant that the case is governed by the decision of a Bench of this Court in the case of Bhartu v. Dalip A.W.N. (1906) 278 : 3 A.L.J. 672. That case at first sight appears to have a close bearing upon the case before us, but it will be observed on closer scrutiny that in the judgment of myself and my brother Knox, care was taken to distinguish it from a case such as that with which we are now dealing. It was held in that case that upon the true construction of two documents, one being a usufructuary mortgage and the other a simple mortgage, there was no consolidation of the two mortgages and that the mortgagor was, therefore, competent to redeem the first mortgage without redeeming the second. In our judgment we observed: 'It may be that if the parties to mortgage transactions determine and agree so to consolidate mortgage securities as to preclude the mortgagor from redeeming one without redeeming the other, their contract in that regard would be enforced. But in this case we are unable to discover that there was any such clear and distinct contract entered into between the parties as obliged the mortgagor to redeem both mortgages at the same time.' And later on: 'There is an express provision in the later deed that the mortgaged land should not be redeemed unless the mortgagor paid the amounts which had been ear-marked in the earlier passage as being the two sums, namely, one of Rs. 1,000 secured by a bond of the 17th of May, 1881, and the other the further advance of Rs. 500 (which was secured by a second mortgage of the 17th of June 1881). From this we gather that the parties contemplated that the mortgagor should be at liberty to redeem the later mortgage on payment of the two sums secured by it, namely, Rs. 1,500. If he was so at liberty to redeem that mortgage at any time, there is no reason why he should be precluded from redeeming the earlier mortgage by payment of the amount secured by it.'
4. Unlike this case, the covenant which we have before us is specified and clear. The mortgagors in it undertook to re-pay the amount due under the second bond before payment and redemption of the earlier mortgage. In view of this specific covenant on the part of the mortgagors, it would be, I think, inequitable to hold that the mortgagors despite their covenant can redeem the earlier mortgage alone leaving this second encumbrance unsatisfied.
5. The case is similar to the case of Muhammad Abdul Hamid v. Jairaj Mal A.W.N. (1906) 267 : 3 A.L.J. 768. In that case the mortgagors having taken a farther advance on the security of a second mortgage of the same property covenanted that they would not be at liberty to redeem it without at the same time redeeming the first. It was held by Mr. Justice Rustomji and myself that this was a valid covenant and did not amount to a clog or fetter on the right of redemption, and that both mortgages must be redeemed at the same time.
6. The same question came before my brothers Banerji and Tudball in Ram Das v. Simrikha Kuer 2 Ind. Cas. 144, In that case there was a first mortgage of property and then a second mortgage deed of Asarh Badi 15, 1949, was executed which provided as follows: 'Whenever I am paying off the mortgage debt (i.e., the debt due; under the first mortgage), I shall first pay the principal sum due under this document with compound interest and then the amount of the mortgage.' Another mortgage deed of Magh Badi 10th, 1952, contained this provision: 'Whenever I, the said debtor, shall pay off the mortgage debt in the month of Jeth of any year, I shall first pay the principal sum with interest due under this bond in a lump sum and then the mortgage money. I shall then take back the fields and the documents.' The property comprised in the first mortgage was made in that case security for the amounts secured by the two mortgages, extracts from which 1 have given. It was held, upon a true construction of these documents, that the mortgagor contemplated simultaneous payment of the amounts of the three documents and that the two later documents placed a further charge on the property which was the subject of all the three mortgages, and there was thus a consolidation of the three mort-gages, and the mortgagors were not entitled to recover possession of the mortgaged property unless the amounts secured by the three mortgages were paid. I concur in that decision. The covenant in the present case is a covenant in effect not to pay off the earlier mortgage without first paying off the puisne incumbrances. Despite this covenant the plaintiffs-appellants seek with the aid of the Court to redeem the earlier mortgage without paying the subsequent debt. This, it appears to me, would be inequitable. I am of opinion that the decision of the lower Court is correct and would dismiss the appeal.
7. We are asked, however, to allow the plaintiffs-appellants to redeem both mortgages and amend their claim for that purpose and thereby save the expenses of a fresh suit. This is not unreasonable and is not objected to by Dr. Satish Chander Banerji, the learned Advocate for the respondents. With the view of saving the parties costs we accede to this application. It is necessary, therefore, to refer to the lower appellate Court for determination the following issue:
What sum, if any, is due by the plaintiffs to the defendants on foot of the mortgage of the year 1874.
8. We accordingly refer this issue under the provisions of Order XLI, Rule 25 of the Code of Civil Procedure, with directions that such relevant evidence, as may be required, be taken. On return of the finding the usual ten days will be allowed for filing, objections.
9. I agree with the learned Chief Justice in the order proposed.
10. The order will be as stated above.