Govinda Menon, J.
1. A question of contribution under Section 82, T. P. Act, is the subject-matter of controversy in this second appeal which arises out of a suit by the present respondent for a sum of Rs. 1327-14-0 being two-thirds of the price of the property lost by him.
2. One Arumugham Chettiar was the owner of the two items of properties and he mortgaged both of them to Komaran Chettiar on 3-11-1930. On 5-9-1938 Arumugham Chetty sold item 1 to the plaintiff. In execution of a money decree against Arumugham Chetti, item 2 was purchased by the fourth defendant who is the appellant in this second appeal. After this decree, the mortgagee, Komaran Chettiar filed O. S. No. 647 of 1944 on the file of the lower Court for realisation of the sum of money due under the mortgage of 3-11-1930.
In that suit both present plaintiff and the fourth defendant were made parties, the plaintiff being the fourth defendant and the fourth defendant being the fifth defendant in O. S. No. 647 of 1944. It may he mentioned in this connection that the plaintiff was ex parte whereas the fourth defendant contested the suit and in the decree that was passed therein, Ex. A-1, paragraph 6 stated as follows:
'And it is hereby further ordered that the house purchased by fourth defendant be sold last in the sale proclamation.'
The result of this decree is that item 1 purchased by the first defendant should be sold first and if there is any balance due to the mortgagee-plaintiff then only item 2 purchased by the fourth defen-dant would be sold. The decree amount was realised by the sale of item 1. so that the plaintiff lost the property. Now he brings a suit for contribution under Section 82, T. P. Act, praying that the rateable amount of the mortgage money should he charged on the properties according to their value and if that is done, the plaintiff will be entitled to the amount claimed by him.
The trial Court gave a decree to the plaintiff for Rs. 950 with interest at 6 per cent. per annum from 21-1-1946 against the fourth defendant. This was confirmed in appeal by the lower appellate Court. Hence this second appeal.
3. Mr. V. C. Viraraghavan for the appellant contends relying upon the decision in -- 'Satya Kripal v. Gopi Kishore', 6 CWN 583 (A), that in so far as a decree in O. S. No. 647 of 1944 provided that the second item be sold last, there is a judicial decision which has remained in force and that the second item cannot be made liable for the rateable contribution. What happened in that case was this. Four items of properties were mortgaged for securing a debt and the mortgagee sued on his mortgage for realisation of the money. By the decree, it was ordered that two items of properties should be sold first and if any balance remained due after the sale of those properties, then the same should be realised by the sale of the remaining properties.
The plaintiff who was a purchaser of one of the items paid off the mortgage decree and sued the assignees of the remaining properties for contribution. The Calcutta High Court held that since there was an agreement between the parties to the effect that the two items of properties should he sold first and if any balance remained after such sale then only the other properties should be sold, such an agreement would amount to a contract to the contrary as contemplated under Section 82, T. P. Act, and, therefore, the plaintiff was not entitled to any contribution.
This decision was the subject of comment by Madhavan Nair J. in -- 'Raghavachari v. Venkatanarayana Reddi : AIR1935Mad456 . What happened in that case was that in the process ofexecution of a mortgage decree it was ordered that certain properties should be sold first and then only the other properties. In a suit for contribution, the learned fudge held that a decision settling the order in which the properties are to be sold under a mortgage decree is not a bar to the subsequent claim for contribution as between the persons interested in those properties. At p. 458, the learned Judge distinguishes the decision in 6 CWN 583 (A), in the following words :
'But the facts show that the mortgage decree in the suit which was held to constitute a bar to the claim of contribution, incorporated an arrangement made by the parties by which the incident of the debt was thrown primarily on some of the properties the other properties were only liable if the debt was not realised by the sale of those properties. Although all the properties mortgaged may originally be equally liable for the mortgage debt, it is clear that the liability may be altered by an arrangement made between the parties, and if that arrangement is incorporated in the decree, then so long as the decree exists the claim for contribution cannot he pressed by the party affected by it.'
Therefore the learned Judge understood 6 Cal WN 583 (A), in the sense that the incorporation of the arrangement between the parties amounted to a 'contract to the contrary' as contemplated under Section 82, T. P. Act. In the present case it cannot be said that there was an agreement between the parties, for the plaintiff here was ex parte in O. S. No. 647 of 1944. It was on the application of the fourth defendant that paragraph 6 of the decree was incorporated by which the second item was to be sold as the last in the sale proclamation.
The phraseology shows that even though it is incorporated in the decree, it is nothing more than the settlement of the order of sale in a proclamation and the order in which the properties have to be sold. I am, therefore, of the opinion that tho decision in 6 C WN 583 (A), cannot be pressed into service by the appellant here.
4. The learned counsel for the appellant relies upon a passage in 'Mulla's Transfer of Property Act' at page 540 where the learned author after quoting 6 CWN 583 (A), observes as follows :
'No doubt the statutory liability could be altered by subsequent contract between the contributories; or it may be altered by subsequent decree.' In my view, the way in which the antithesis is put is not correct. All that 6 CWN 583 (A), decided is that a subsequent contract between the contributories incorporated in the decree should be considered to be a contract to the contrary. It is not as if a mere decision of Court can alter a statutory liability by making it a contract to the contrary. The decision in 0 C WN 583 (A), can only mean that if the parries agree and that agreement is incorporated in the decree, then it should be understood as a 'contract to the contrary'.
5. Learned counsel for the respondent brought to my notice a decision in -- 'Deekshitalu v. Venkataramayya', AIR 1936 Mad 293 (C), where it has been held that if a mortgagee gives Up one or more of the properties and proceeds against only the other properties, still the person whose properties have been sold is entitled to proceed against the owner of the properties which have been released by the mortgagor, by a fresh suit for contribution under Section 82, T. P. Act. The principle embodied in that decision can safely be applied to the facts of the present case. I am, therefore, of opinion that the lower Courts are right in holding that the respondent is entitled to be reimbursed of the proportionate price of the properties lost to him.
As regards the sum of Rs. 950 being the proportionate amount, there is no dispute whatever. But the, learned counsel for the appellant contends that interest at six per cent. per annum from 21-1-1946 should not be allowed. The sale was on 21-1-1946 which was confirmed only on 9-3-1946. When the plaintiff was dispossessed, there is no evidence whatever. In such circumstances, it seems to me that the plaintiff is entitled to got interest at six per cent, per annum only from the date of suit, namely, 12-11-1946. With this modification, the decision of the lower Courts is confirmed and the second appeal is dismissed with costs. No leave.