1. The facts which have given rise to this second appeal are, so far as they are material, these. One Hamiduddin owned two properties, one in Jalilpur and another in milak Ghantawala. On the 7th of February 1885, he made a usufructuary mortgage of both the properties in favour of the respondents' father, one Baldeo Das. Later on, on the 7th April 1891, the same mortgagor made a simple mortgage of the same two properties in favour of Baldeo Das. Baldeo Das brought a suit for sale under the second mortgage and obtained a preliminary decree which was made final later on. While the final decree was yet under execution, Hamiduddin brought a suit for redemption of the earlier mortgage of 1885. He obtained a preliminary decree for redemption on the 15th of January 1914, which directed him to pay the mortgage money, viz. Rs. 1,300, on the 30th June 1914. In the execution of the decree for sale 3/4th share of the property mortgaged in village Jalilpur was sold by auction and was purchased by the sons of Baldeo Das, who had died meanwhile. Hamiduddin had, as already stated, to pay the mortgage money for redemption on or before the 30th of June 1914. He made a deposit on the last date. But, before making this deposit, be had made an application to the Court, saying that, as a portion of the mortgaged property had been purchased by Baldeo Das, a proportionate reduction in the redemption money should be made. Later on, it appears he did not press this application, with the result that a final decree for redemption was made on the 12th of May 1917. The 3/4th share in Jalilpur which had been purchased by Baldeo Das's sons, was removed from the operation of the final decree for redemption, with the result that Hamiduddin was put in possession of the remaining property. After this Hamiduddin applied for refund of a proportionate amount of the mortgage money, that is to say, he said that as Baldeo Das's sons the representatives of the mortgagee, had purchased 3/4th of the property in Jalilpur, they were bound to refund that amount of the mortgage money out of Rs. 1300, which was payable in proportion by the 3/4th share aforesaid, This application had various results in various Courts and was ultimately dismissed in this Court, it being held that no application under Section 47 of the Civil P. C, lay. Hamiduddin had purported to apply under that section of the Code. Then after the application had been finally disposed of Hamiduddin brought the suit, out of which this appeal has arisen for refund of the proportionate mortgage money.
2. The Court of first instance decreed the suit, but the lower appellate Court dismissed it. One of the questions that the learned Judges decided was whether the plaintiff Hamiduddin had any cause of action for the suit. One Court said that he had a cause of action in equity, and the other said that he had no cause of action in equity. In my opinion the suit is one clearly contemplated by Section 95, Transfer of Property Act. By their purchase of the 20th of May 1914 the sons of Baldeo Das, the present respondents, became co-mortgagors with Hamiduddin, so far as the prior mortgage went. Hamiduddin having satisfied the prior mortgage is entitled to claim a charge against the 3/4th share in Jalilpur which was purchased by the respondents. There is no answer to this argument.
3. The learned Counsel for the respondents, however, has tried to answer this argument by pointing out certain circumstances and I proceed to consider his argument. He said that the plaintiff came too late into the Court. According to the learned Counsel Hamiduddin should have induced the Court, which was seised of the redemption suit, to reduce the amount of the mortgage money payable by him under the preliminary decree of the 15th January 1914. In other words the learned Counsel's contention is that, if his clients were able to get 3/4th share in Jalilpur removed from the operation of the preliminary decree of the 4th January 1917, Hamiduddin should have tried to get a reduction in the amount of the mortgage money that was payable by him. In my opinion there is a clear answer to this argument. The final decree should follow the preliminary decree. The passing of a final decree is no occasion for the hearing of a contention that a case for contribution has arisen in certain circumstances which happened since the passing of the preliminary decree, and, therefore, that question of contribution should be decided before passing the final decree. Supposing that Hamiduddin could hare made his present claim a ground of attack within the meaning of Section 11(4), Civil P.C., it is clear to me that he 'ought' not to have made it a ground of attack. It would only have immensely complicated the matter even if Hamiduddin was competent to put forth his present claim before the Court. If Hamiduddin failed to press his application for a reduction of the mortgage money it does not follow that he was thereby estopped from maintaining his present claim. I would, in view of my above judgment, set aside the decree of the lower appellate Court modify the decree of the Court of first instance and give the plaintiffs-appellants a decree for recovery of Rs. 525 with costs throughout and interest at 6 % per annum from the date of the institution of the suit till recovery, by sale of the 3/4th property as described in relief A of the plaint.
4. I concur in the order passed. This was a case where the plaintiff had executed a usufructuary mortgage in favour of a third party and had later on executed a second mortgage in respect of the equity of redemption in favour of the defendants. He sued for redemption of the usufructuary mortgage and obtained a preliminary decree on the 30th June 1914. Before a final decree was obtained by him, the defendants had, in pursuance of the second mortgage, acquired the mortgagors rights in 3/4ths of one portion of the property. Notwithstanding this, the plaintiff paid into Court the whole of the redemption money due under the preliminary decree of the 30th June 1914. A final decree was passed in his favour on the 12th May 1917, but the Court refused to give him possession of the 3/4ths of one portion of the property which had already been acquired by the defendants. This suit is brought by the plaintiff for recovery of 3/4ths of the redemption money paid by him on the ground that this was in effect paid by him on behalf of the defendants. The recovery is asked by sale of the 3/4ths share of the property in possession of the defendants.
5. The first Court decreed the claim on the ground of equity. The lower appellate Court rejected it on the ground that the plaintiff should have got the defendant joined with him in the final decree of the 12th May 1917, as a co-mortgagor. Not having done so he could not bring this supplementary suit.
6. The decree of the lower appellate Court has been defended by counsel for the respondents on two grounds. One ground is that Section 95, Transfer of Property Act, does not permit one of several mortgagors to redeem the mortgaged property where the integrity of the mortgage has been broken by one mortgagee acquiring a share in the mortgagor's interest. No authority has been shown to me for restricting Section 95 to a case where the integrity of the mortgage is intact. A second ground taken up is that the plaintiff was bound to get the defendant made a party in his final redemption decree and not having done so had no further remedy. It is obvious that the plaintiff might have paid up the whole of the redemption money any time after the 30th June 1914, before the final redemption decree was passed, Having paid it he could not be expected to ask the Court to deliver possession to the defendant merely because the defendant had acquired a part of the mortgagor's interest. He was clearly entitled to allow the final decree to be made on the basis of the redemption decree and at a later date to claim that he had paid money due from the defendant as the purchaser of a portion of the mortgagor's interest. The respondent's counsel did not clearly state that he relied upon Section 11, Civil P.C. If he did so the argument based on this section has been met by the remarks of my learned brother.