1. This is an application in revision against an order of a Judge of the Small Cause Court, dismissing the plaintiff-applicant's suit. The plaintiff mortgaged his holding to the defendant on the 16th July 1874. Under the terms of the mortgage, which was usufructuary, the defendant was bound to pay to the zamindar the rent due for the holding but failed to do so. In 1926 the zamindar brought a suit for arrears of rent against both the mortgagor and the mortgagee. A decree was obtained on the 9th September 1926. The plaintiff paid up the mortgage money on the 30th September 1926. He then brought this suit to recover the payment from his mortgagee. It appears that on the 27th July 1926, before the zamindar got his decree for arrears of rent, the plaintiff had sued the defendant for redemption of his mortgage. Issues in that suit were struck on the 27th November 1 926.
2. The lower Court has held that under Order 34, Rule 7 the plaintiff could have, in the mortgage suit asked for an account to be taken which would debit the defendant with this sum in suit in this case. He, therefore, held that he could not realize it by this separate suit.
3. The present application for revision is resisted on various grounds, but none of them appear to me to be of any weight. The first ground is that the lower Court was right. There is nothing in law to prevent the plaintiff from treating the cause of action as one arising under Section 69 Contract Act. His mortgage suit was brought before the plaintiff paid the zamindar the arrears of rent. Even if it had not been brought before, it was open to the plaintiff to say that he preferred to realize this sum by a separate suit based on Section 69, Contract Act, rather than by complicating the mortgage account. Three other arguments have been raised by the counsel. One is that the plaintiff did not wait long enough to see if defendant would pay the arrears of rent. A cause of action arose under Section 69 immediately the payment was made by the plaintiff. The plaintiff was entitled to make the payment immediately it became due from the defendant. Again it is said that liability to pay, on the part of the defendant referred to in Section 69, Contract Act, is a liability existing between the person bound to pay and the person to whom the money is paid. There is no such restriction to be read into Section 69. A third reason, which was also, I find, invoked by the lower Court, was that a payment, to attract Section 69, must be voluntary. The lower Court seemed to think that the payment was not voluntary because the plaintiff could have waited until execution was taken out by the zamindar. This is entirely to misunderstand the meaning of the word 'voluntary.' A payment is voluntary when it is made by a person in proper command of his senses. In my opinion the decision of the lower Court was unjustified by the reason given by that Court or by reasons set up by counsel for the opposite party. The lower Court had no right to dismiss the suit on the ground stated. Accordingly, I set aside the order of the lower Court and direct that Court to proceed with the case on the merits.