Raghava Rao, J.
1. In this case a mortgagee who paid up a prior charge-decree on the hypotheca in order to avert an imminent sale in execution of the decree sought to recover the amount paid, basing himself in his plaint solely on the right of subrogation recognised by the 1st and 2nd paragraphs of Section 92, Transfer of Property Act. The contesting defendants were certain alienees of the hypotheca who resisted the right so claimed. The right of subrogation has been held against by both the Courts below on the ground that it could only be exercised and was not within the period of limitation applicable to the original charge irrespective of the date of discharge. The Courts below have however granted relief to the plaintiff applying Section 72, Transfer of Property Act. The lower appellate Court has also relied on the equitable lien or charge found by it to exist in favour of the plaintiff on the authority of the ruling of the Calcutta high Court in Ambica Charan v. Ramgati, A. I. R. 1915 Cal. 369 : 28 I. C. 571. It was also inclined to think that the plaintiff's claim could be sustained on the basis of the personal right of reimbursement recognised by Section 69, Contract Act, although in the view that it took that either Section 72(b), Transfer of Property Act, applied or that there was an equitable lien or charge enforceable by the plaintiff, it did not pursue the point further and did not give a decision thereon.
2. Mr. Srinivasa Rao for the appellant, one of the contesting defendants in the suit, urges that the right of subrogation, the only basis of the plaint, having been found against, the suit should have been straightway and simpliciter dismissed. I do not agree. The. facts were not in controversy and the Courts below were entitled to adjudicate on the rights of the parties irrespective of the precise legal label employed and the particular legal position envisaged in the plaint.
3. It is next urged by the learned counsel that Section 72(b) cannot and does not apply to the present case, because, firstly, this suit is not for the principal money under the plaintiff's own mortgage with the amount deposited in Court to avert the execution sale added to the principal money, as authorised by Section 72, Transfer of Property Act, but only for the latter amount, there having been a suit for the principal money filed even before the deposit, and because, secondly, there is no proof that the mortgagor had been called upon but failed to take proper and timely steps to preserve the property as enjoined by the proviso to the section. The Courts below have answered the first objection by pointing out that the two suits were tried together. But the second objection still remains in my opinion unanswered. I am not therefore prepared to reject this contention of the learned counsel to this extent.
4. Nor am I prepared to accept the view of the lower appellate Court founded upon Ambica Charan v. Ramgati, A. I. R. 1915 Cal. 369: 28 I. C. 571 as correct. I am not satisfied that it is permissible for the Court to give effect to any equitable charge or lien de hors the statute. What was decided in that case can be gathered from the headnote to the ruling. In that case the plaintiff had obtained a preliminary decree upon his mortgage. Subsequently the mortgagor's landlord sold the land in execution of a rent decree and the plaintiff deposited the decretal amount to set aside the sale. Afterwards the mortgagor, defendant 1, sold the land to defendant 2, who paid into Court only the amount due to the plaintiff under the preliminary decree. The plaintiff then brought his suit to establish his right to a lien on the mortgaged land for the amount paid by him to have the sale set aside. It was held that the plaintiff was entitled to a decree. In so holding the learned Judge expresses the ratio decidendi thus :
'It cannot be supposed that the plaintiff intended to make a gift to the mortgagor of the amount deposited to avoid the execution sale. The plaintiff can have had no other intention than to add that amount to his charge. It is only just and equitable to conclude that by making the deposit, the plaintiff acquired a lien for which the mortgaged property was not discharged by the mere payment of the sum due under the preliminary decree. That payment satisfied the decree but left the Hen (acquired subsequent to the decree) outstanding.'
It is not easy to see by what provision of law the lien as given effect to by the learned Judge bad come to be created, unless it be by Section 72, Transfer of Property Act. That section could not however obviously apply because the mortgage had already ripened into a decree and there could be no further adding of the deposit amount to the principal money for the purpose of a suit thereafter for the consolidated amount.However that may be, the case was decided under the original unamended Section 72; and even assuming that that section, on the construction apparently put upon it by the learned Judge, supported the equity relied on by him, the section as it now stands amended, can only support such an equity if there is a compliance with the requirement of the proviso to the section and not otherwise.
5. There remains, however, the question of the plaintiff's personal right to a reimbursement under Section 69, Contract Act, which, although mooted in the judgment of the lower appellate Court, has not been pursued by it as already stated. As pointed out in Mulla's Commentary on the Transfer of Property Act, pages 495 and 496 of the third and latest edition with reference to a number of cases cited in footnote (w), the words 'add such money to the principal' do not exclude the personal right of suit under Section 69, Contract Act, although if a personal decree has been obtained the amount cannot be tacked to the mortgage. That I adopt as a correct statement of the law. It follows from this that this second appeal must be dismissed with costs.
6. (No leave)