1. This is a plaintiffs' appeal arising out of a suit on a mortgage
2. On 17th January 1917, Chhotey Lai deceased, the husband of Mt. Bundia, defendant 1 executed a simple mortgage in favour of Keshab Das, the predecessor-in-title of the plaintiffs, of three items of property, house No. 1, house No. 2 and some zamindari. Defendant 5 was impleaded simply as a donee of part of the zaminclari, and defendant 6 as having attached one of the houses in execution of a decree.
3. On 5th September 1921, the mortgagor sold house No. 1 to Pt. Balal Prasad, defendant 2.
4. There is an allegation in the suit, the truth of which has not yet been decided, that on 17th January 1927 one Khunnun, claiming to be the owner of the house No. 2 mortgaged it to one Hazari Lai, who is now defendant 4, Khunnun being represented by his son Jagannath. The plaintiffs directed their suit at the outset against both the houses Nos. 1 and 2, but after the written statements had been filed they proceeded through their counsel on 15th February 1928 to state that they admitted that house No. 2 did not belong to Chhotey Lai, the mortgagor in the mortgage in suit, but that it belonged to Khunnun, and they agreed therefore that the said house might be excluded from the claim against all the defendants.
5. When the plaintiffs' vakil had made the statement, the vakil for Hazari Lai, defendant 4, stated on behalf of his client that as the claim had been withdrawn in respect of house No. 2, defendant 4, was also prepared on his side to remit his costs.
6. The trial Court held that house No. 1 was only rateably liable and not liable for the whole amount of the mortgage. The judgment declared that the amount for which house No. 1 was liable was Rs. 250, whereas in the decree the amount was stated to be Es 300. The plaintiffs appealed, and defendant 2 filed a cross-objection. The plaintiffs' appeal was dismissed, and on the cross-objection the error in the decree was corrected, by substituting' Rs. 250 for Rs. 300. Except for this modification the decree of the trial Court stood. The plaintiffs have come up here in the second appeal, asking us to hold that house No. 1 should have been made liable for the whole amount due under the mortgage Rupees 1,278-8-3. We have heard not only counsel for the plaintiffs-appellants and for Pt. Balal Prasad, defendant 2, but also counsel on behalf of Hazari Lai, the mortgagee in the mortgage alleged to have been executed by Jagannath, the son of Khunnun. We have had much argument addressed to us as to the consequences of the mortgagee's action in declaring that he was prepared to exclude house No. 2 from his suit. We have had cases quoted to us and it has been argued on the basis of this case or that case that the plaintiffs' action amounted to, or did not amount to, a release. In our view there is no particular magic in the word release.' The circumstances of each case must be regarded in order to determine which of the parties in suit may be bound by the particular action taken.
7. We may illustrate this by noting that the lower appellate Court has relied mainly on the decision in Jugul Kishore v. Kedarnaih (1) which it has described as being on all fours with the present case. In our view that case is plainly distinguishable. When the mortgagor sold the property which the mortgagee subsequently exempted from his suit, he left Rs. 500 with the vendee, which was to be paid to the mortgagee, which was paid to the mortgagee and which the mortgagee eventually accepted in full payment of the liability of that portion of the property. In the present case the mortgagees did not receive any money in consideration of their exempting house No. 2, and least of all did they receive any money from the mortgagor. The mortgagor, so far as the evidence goes, was in no way privy to the transaction between the mortgagees and defendants 3 and 4, more particularly defendant 4. In our view the case may be decided by reference to two very normal principles. It was open to the mortgagees to proceed by their suit against both the items of property, house No. 1 and house No. 2, and having obtained a decree in reference to them both, it was open to them to proceed to recover the whole of their mortgage money, if they could, by sale of either, and subsequently by sale of the other if the sale of the first did not satisfy their decree. On the other hand, it was open to them to include in their suit only one of the items of the property, if they so chose, but in this case if that item proved insufficient to cover all that was due under the mortgage, they would be unable, of course, to proceed by another suit against the other two properties. But in either of these cases there was nothing whatever to prevent them from asking for the whole of their mortgage money from the one property.
8. It has been contended that defendant 2, the present owner of house No. 1, would be gravely injured if his property was made liable for the whole amount of the mortgage, because, as it was suggested on his behalf, he would not be able to file a suit for contribution directed against the other property, house No. 2. While however this assertion was made both on behalf of defendant 2 and by counsel for defendant 4, no authority was shown to us to suggest why a suit for contribution should not lie. We were repeatedly referred to what the mortgagees had said and done, but nothing that the mortgagees said or did possibly binds the owner of house No. 1 unless he or his predecessor-in-title was in some way privy to the statements or actions of the mortgagees. This is not suggested. Heading the terms of Section 82, T.P. Act, it is certainly not apparent why a suit for contribution should not lie. There is nothing in it to the effect that a suit will not lie unless the property has been included in the original decree. It will, of course, be for 'defendant 2 if he files such a suit, to establish that Chotey Lai and not Khunnun was the real owner of the property. That is a matter that has not yet been gone into owing to the fact that the mortgagees exempted house No.2.
9. The result is that we allow the appeal, and setting aside the decrees of both the lower Courts decree the suit of the plaintiffs in full as regards house No.1. The plaintiffs will get their full costs from defendant 2 throughout. The defendants including defendant 4 will pay their own costs. The decree will be prepared under Order 34, Rule 4, six months being allowed to defendant 2, counting from 16th June 1931, for payment.