H.G. Richards, C.J. and Banerji, J.
1. This appeal arises out of a suit brought to enforce a mortgage, dated the 25th of June, 1889. The defendants 8--16 held a mortgage, dated the 14th of April, 1888. The plaintiff, however, stated that when the mortgage of the 25th of June, 1889, was executed, two prior mortgages, one dated the 26th of June, 1886, and the other, dated the 28th of June, 1887, were paid off, and he accordingly claimed that to the extent of these mortgages, which were paid off, he had priority over the defendants 8-16, notwithstanding that their mortgage was prior in date.
2. The lower court decided in favour of the defendants 8-16 and held that the plaintiff had no priority.
3. Two questions have been argued in the present appeal first, the question whether or not the plaintiff had in fact priority over the defendants 8-16; and secondly, assuming that he had such priority, whether he could enforce it in a suit instituted by himself as plaintiff.
4. The facts are undisputed. The plaintiff's mortgage provided that money sufficient to discharge the mortgage of the 26th of June, 1886, and the mortgage of the 28th of June, 1887, should be left with the mortgagee, who should pay off the mortgages and get the mortgage-deeds handed over to him. This was duly done, and the plaintiff is able to adduce in evidence the two mortgages of the 26th of June, 1886, and the 28th of June, 1887.
5. In our opinion the plaintiff is entitled to priority in respect of the mortgages which he paid off in accordance with the terms of his mortgage-deed. It was clearly for the benefit of the mortgagee that the mortgages of the 26th of June, 1886, and the 28th of June, 1887, should be kept alive, and we think that a strong presumption arises that it was the intention of the mortgagee to keep these mortgages alive. This view is in accordance with a vast amount of authority of this Court, and also with the view taken by their Lordships of the Privy Council in the case of Gokaldas Gopaldas v. Puranmal Premsukhdas (1884) I.L.R. 10 Calc. 1035 and also in the case of Dinobundhu Shaw Chowdhry v. Jogmaya Dasi (1901) I.L.R. 29 Calc 154. The law on the subject is fully set forth in the case of Jagatdhar Narain Prasad v. A.M. Brown (1906) I.L.R. 33 Calc. 1133 and is well summarised at page 1154.
6. It was argued on behalf of the respondents that the mortgagee must under the circumstances of the present case, be deemed to have paid off the prior mortgages merely as the agent of the mortgagor, and that accordingly we ought to hold that those prior mortgages were absolutely extinguished as soon as payment was made. Reliance is placed upon the decision in the case of Baij Nath v. Murlidhar Weekly Notes 1907 p. 85 and also in the case of Tufail Fatma v. Bitola (1904) I.L.R. 27 All. 400 It is no doubt true that expressions occur in the judgements in these cases suggesting that it was the opinion of the court that where money is left with the mortgagee to discharge prior mortgages, the mortgagee discharges these prior mortgages merely as agent for the mortgagor. 'With all due respect, we consider that this view is inconsistent with a great number of cases decided in this Court and also with the view taken by their Lordships of the Privy Council in the cases to which we have already referred.
7. The second question is the question whether or not the plaintiff is entitled to put forward in a suit instituted by himself the priority which for the purposes of this question it must be assumed that he has. We think that it is not reasonable to hold that a person is entitled to put forward a right in a case in which he is sued and to successfully resist the suit, and that he cannot enforce the very same right as a plaintiff. In the case to which we have referred, namely, the case of Jagatdhar Narain Prasad v. A.M. Brown, the plaintiff successfully put forward and enforced his claim under a prior mortgage which he had paid off in circumstances similar to those of the present case. There is also an unreported ruling of this Court to the same effect, namely Thakur Rudar Singh v. Param Sukh S.A. No.768 of 1909 decided on the 11th of May 1910 Reliance is placed upon another unreported decision of this Court, viz. Bhupat v. Musammnt Ganeshi S.A. No.993 of 1910 decided on the 12th of April 1911 The circumstances of that case were not altogether on all fours with the facts of the present case; and the question now raised was not directly decided. In our opinion there is no sound reason why a person who has priority by reason of having paid off a prior incumbrance, should not enforce that priority as plaintiff.
8. The result is that the appellant succeeds on the two questions which have been argued before us. There is no question as to the amount due upon the prior mortgages, and the plaintiff only seeks interest thereon at the rate mentioned in the later mortgage in his favour. We accordingly allow the appeal to this extent that we vary the decree of the court below by directing that the defendants, other than the defendants 8-16 and 20-23, do pay into Court the amount found due upon the mortgage, the basis of the claim, the said amount to be paid within four months from this date, together with the costs of this suit and future interest at the stipulated rate, up to the date fixed for payment and thereafter at the rate of six per cent, per annum. If the said amount be paid, we direct that out of the money so paid in the plaintiff should be paid the costs of the suit, and the balance should be paid to the plaintiff and to the defendants Nos. 20-23, the plaintiff receiving half, and the defendants Nos. 20-23 the other half. We further direct that if payment be not made as ordered above, the defendants 8--16 shall have the right, within five months from this date, to redeem the mortgages of the 26th of June, 1886, and the 28th of June, 1887, by payment to the plaintiff and the defendants Nos. 20-23 of the sum of Rs. 13,926-5-5, together with interest, from the date of this suit to the time fixed for payment at the rate mentioned in the plaintiff's mortgage together with proportionate costs. In the event of the said amount being paid, the plaintiff will have the right to redeem the mortgage held by the defendants 8--16, dated the 14th of April, 1888, within three months from the date when the defendants Nos. 8-16 shall have redeemed the earlier mortgages of 1886 and 1887. Upon such payment being made the plaintiff shall be at liberty to bring to sale the mortgaged property for the aggregate amount of his own mortgage and the mortgage of the defendants 8-16 which he shall have so redeemed' and out of the proceeds of such sale will be paid to the plaintiff (1) his costs of the suit, (2) the amount of the mortgage of the defendants 8-16 paid by him to the said defendants, and (3) a moiety of the amount of the mortgage of the 20th of June, 1889. The other half of the said amount will be paid to defendants 20-23, and the surplus, if any, to the persons entitled thereto. In the event of the defendants 8-16 not redeeming the prior mortgages of the 26th of June, 1886, and the 28th of June, 1887, the plaintiff shall be entitled to bring to sale the property comprised in his mortgage and out of the 'proceeds of the sale to realize in the first place the costs of this suit and in the next place a moiety of the amount due to the plaintiff and the defendants 20-23 on foot of the mortgages of the 26th June, 1886, and the 28th of June, 1887, the other moiety being payable to the defendants 20-23. Out of the balance, the defendants 8-16 will, having regard to the circumstances of this case, be entitled to the amount due in respect of their mortgage of the 14th of April, 1888. Out of what will remain after the making of the payments mentioned above, the plaintiff and the defendants 20-23 will be entitled to payment of the balance due upon foot of the mortgage of the 25th of June, 1889, the plaintiff getting half the said amount and the defendants 20-23 getting the other half between them, and in the last case the surplus, if any, will be paid to the persons entitled thereto. The appellants will get their costs of this