1. Second Appeals Nos. 1257 and 1258 arise out of one and the same suit. Both parties appealed to the lower Appellate Court, which partly decreed that of the plaintiffs and dismissed that of the defendants.
2. The latter have, therefore, filed two appeals.
3. The facts of the case are as follows:
There were three sets of defendants to the suit, The appellants before as constitute the first set. The second set (Nakched Rai and Nageshar Rai) took a lease of property from the Maharaja of Benares (defendant third set) and as security for the payment of the rent thereof, hypothecated two items of property: (a) certain Zemindari property withan area of about 29 bigahs;
(b). a fixed rate tenure of area 6 bighas 9 biswas odd.
4. This was on 18th January 1901. The rent fell into arrears and a snit to recover the arrears was brought in the Revenue Court, and a degree for those of 1311 and 1312 F. was obtained on 22nd January 1906.
5. The lien upon the property could be enforced in the Revenue Court and not in the Civil Court until a decree for the arrears had been obtained in the R venue Court, which alone had jurisdiction to hear and determine the suit for the arrears.
Now the defendants second set, the mortgagors, sold on 13th February 1905 the fixed-rate tenure to the defendants first set, the appellants before us.
6. In 1908, the Maharaja sued in the Civil Court to enforce the lien as against both properties and a decree for sale of the sum of Rs. 6,059-9-9 was obtained by him.
7. Unfortunately (apparently in ignorance of the sale of 13th February 1905) he only impleaded Nakched and Nageshar Rai and not the present appellants. The decree was put into execution and both properties were sold and purchased by the decree-holder on 20th July 1912 for the sum of Rs. 1,000.
8. The auction-purchaser was formally pleased in possession, bat the present appellants retained actual possession of the fixed-rate tenancy. On 20th October 1916 the Maharaja sold all the rights he had acquired in both properties to the present plaintiffs-respondents. On 3rd March 1917 the latter brought the present suit as against the appellant.
9. They sought to recover Rs. 2,200 as being the proportionate share of the arrears (Rs. 6,059-9-9) of rent, attributable to this item of property (the fixed-rate tenure), in view of the comparative values of the two items hypothecated.
10. The appellants contests the suit, pleading-
(1) that the Maharaja's claim under the mortgage-deed as against them was barred by time and as they had not been impleaded in the former suit, their property was no longer liable;
(2) that the plaintiffs, not being purchasers of the bond or decree but merely transferees from the auction-purchaser of what had been acquired at the auction-sale, could not maintain the suit;
(3) that the appellants were not liable to contribute towards the decree for arrears of rent and a suit for contribution was barred by limitation;
(4) that they had paid off a debt of Rs. 624 on the property which was secured by a mortgage prior to that in favour of the Maharaja.
11. There was a farther plea with which we are not concerned. The first Court held that there was no bar of limitation; that the proportionate liability of this property out of the sum of Rs. 6,059-9-9 was Rs. 1,300; that the plaintiffs were entitled to recover this sum, or in default the defendants' right to redeem should before closed and the plaintiffs entitled to possession of the property. It allowed a period of sis months. On appeal the lower Appellate Court increased the sum of Rs. 1.300 to one of Rs. 1,800 but otherwise upheld the decree of the first Court.
12. The defendants first set appeal. It is urged-
(1) That a suit for sale on the basis of the mortgage would now be barred by time and that as at the utmost only a suit for sale could possibly lie, the suit should be dismissed.
(2) That no suit for possession can lie.
(3) That the plaintiff's vendor purchased no right whatsoever at the auction-sale of the property in suit, and, therefore, the plaintiff has no remedy whatsoever against the appellants.
(4) That the Court below was wrong in apportioning the whole decretal debt, Rs. 6,059-9-9, to the two properties and that only the sum of Rs. 1,000 paid for the two properties at the sale could thus be apportioned and a due proportion allotted, to the property in suit.
(5) That the Courts below were wrong in ignoring the plea raised by the defendants that they had paid Rs. 624 for a mortgage-debt that was prior in date to that of the Maharaja.
13. The last point is one that clearly was not pressed before the Court below and apparently not in the Court of first instance. In the grounds of appeal put forward by the present appellants in the lower Appellate Court, no mention of this point is to be found. The plea involves a question of fact which was not pressed or even placed before that Court for decision. It, therefore, cannot be allowed to be taken here.
14. So far as the plea of limitation is concerned we must point out that the decree for arrears of rent was not obtained in the Revenue Court until 22nd January 1916, and the security under the bond then became enforceable and the present suit was brought within 12 years of that date.
15. In the circumstances of this case we, therefore, are not prepared to hold that a suit on the original bond would have been barred on the date on which the present suit was brought The main question in the appeal is whether the plaintiffs have any remedy and if BO, what remedy in the circumstances of the case.
16. Counsel for the appellants bases his case on the Full Bench rulings reported as Hargu Lal Singh v. Gobind Rai 19 A. 541 (F.B.) : A.W.N. (1897) 154 : 9 Ind. Dec. (N.S.) 350 and Madan Lal v Bhagnan Das 21 A. 235 (F.B.). A.W.N. (1899) 41 : 9 Ind. Dec. (N.S.) 859. In our opinion those rulings do not apply. Those suits were, to quote from one of the judgments, ordinary suits for ejectment, the plaintiff claiming to recover possession from the defendant absolutely and not subject to any condition. Those suits, therefore, rightly failed. The Courts below have applied the principle followed in the cases reported as Ram Prasad v. Bhikari Das 26 A. 464 : A.W.N. (1904) 108 and Babu Lal v. Jalakia 20 Ind. Cas. 184 : 11 A.L.J. 362.
17. In the former case no doubt the sale in execution of the simple money decree took place on 20th June 1895 after the preliminary decree for sale had been passed on 2nd May 1895, but the auction-purchasers were not made parties to the suit for sale before the final decree was passed or at any time.
18. This Court held that the defendants must be allowed to redeem upon payment of what was found due upon the mortgage and the time that the mortgage-decree was passed and in default the plaintiff was entitled to a decree for foreclosure.
19. In the latter case, the straggle was between purchasers in execution of two mortgage-decrees obtained on the two mortgage-bonds and to which each mortgagee had failed to make the other mortgagee a party. The difficulty arose because the prior mortgagee had failed to implead the puisne mortgagee in his suit and the latter was, therefore, in that case in the same relative position as the present appellants in this case. The plaintiff in the subsequent suit sought to obtain either his money or possession of the property and the Court held that the suit was maintainable.
2. The case before us is parallel in every way, so far as the point is concerned, with that of Hajra Bibi v. Shiam Narain 20 Ind. Cas. 184 : 11 A.L.J. 362. There as here a portion of the mortgaged property was transferred (after the mortgage) to the appellant Hajra Bibi, and she had not been made a party to the mortgage suit and her two items were sold and purchased by Shiam Narain at the auction-sale held in execution of the mortgage-decree. This v Court held that she was in equity entitled to redeem the property on payment of that portion of the mortgage-money whish was attributable to the properties purchased by her and in case of her failure to do so, the plaintiff was entitled to possession. The present case only differs from this case in that the auction-purchaser has transferred to another person who has sued. This is not a material difference.
3. The decision in Ret Ram v. Shadi Ram 45 Ind. Cas. 798 : 16 A.L.J. 607 : 5 P.L.W. 88 : 35 M.L.J. 1 : 24 M.L.T. 92 : 28 C.L.J. 188 : (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 40 A. 407 : 9 L.W. 550 : 12 Bur. L.T. 73 : 45 I.A. 130 (P.C.) does not apply as Section 89 of the Transfer of Property Act has since been repealed.
4. Our attention has been called to the decision in Aghore Nath Banerjee v. Deb Narain Guin 11 C.W.N. 314. In so far as it slashes with the decisions of this Court, we cannot follow it and diverge from the consistent coarse of rulings of this Court. There is a good deal to say for the plea that the present appellants, not having been made parties to the former suit, cannot be now placed in a worse position and that the only remedy against them is a suit for sale on the original bond. We cannot, however, go behind the rulings of this Court, consistently followed for many years and which all allow persons in the position of the appellants an opportunity to redeem in a suit properly constituted and to which all necessary persons are parties.
5. We, therefore, hold that the view taken by the Courts below is correct.
6. There remains the question of the amount which the appellants must pay. They claim that they should only be made to pay a proportionate part of Rs, 1,000, the prise paid at the auction-sale by the Maharaja of Benares, This would not be in accordance with the rulings mentioned above. The appellants on the principle laid down therein most pay a proportionate part of the amount due on the mortgage, i.e., Rs. 6,059-9-9.
7. No exception is taken before us to the figure of Rs. 1,800 worked out by the Court below on this principle.
8. The result, therefore, is that the appeal fails and we dismiss it with costs, including fees on the higher scale.