Venkatasubba Rao, J.
1. The mortgage decree was passed against the father and the son. It was provided both by the preliminary and the final decrees, that the father's interest in the properties mortgaged should be proceeded against first and only in the event of the decree still remaining unsatisfied, the son's interest should be sold. It is no use contending that a joint decree was passed; for the decree makes defendant 2's share in the property liable only when defendant l's share is found insufficient. Thus, the decree fixes the measure of defendant '2's liability although as Mr. Mahadeva Ayyar, for the appellant (the auction-purchaser) contends, neither is the proportion fixed nor is the actual sum specified. But the decree, all the same, makes it clear that the son's liability is only for the portion remaining due after the father's share is sold. I fail to see how the facts relied upon by Mr. Mahadeva Ayyar militate against the view that the extent of the son's liability is defined by the decree. The rights of the parties must be taken to be governed by the decrees which have now become final. Why the decrees came to be passed in that way, it would be idle to inquire.
2. Now let us look at the facts that gave rise to the application. The father's share in the family property was sold in execution and fetched a certain sum, The balance, which after that amount was credited, was still due under the decree was Rs. 2,000 odd. To realize that sum, the son's share was sold and fetched Rs. 7,510. Thereupon, he paid into Court Rs. 2,000 odd referred to above along with the additional sum specified in Order 21, Rule 89 and applied under that rule to have the sale of his share set aside. The auction-purchaser's contention is that the application made by the son, without his depositing the full amount of the decree, was bad. The son is protected by the proviso to Rule 89 which was added by way of amendment and which reads thus:
Provided that where the immovable property sold is liable to discharge a portion of the decree debt the payment under Clause (b) of this sub-rule need not exceed such amount as under the decree the owner of the property is liable to pay.
3. The argument is, that at the very passing of the decree, the extent of the liability must be specified either in the terms of the sum payable or as a fixed fraction of the whole amount, There is nothing in the rule countenancing the contention, and I therefore reject it. Next it is contended that the father's act in applying under E. 90 to set aside the sale of his interest, should be held to be a bar preventing the son,,from applying under E. 89. The father's application was rejected by the lower Court and the appeal filed by him has also been withdrawn and we have, just made an order dismissing that appeal. Was the son bound to wait till the father's application was disposed of? In that case the son would be met with the plea that his application was out of time. Mr. Mahadeva Ayyar when pressed, has had to concede that if his view be correct the son would be without a remedy. The son could not apply, if the appellant's contention be right, when his father's application was pending, as at that time it was not definitely known whether the sale of the father's interest would be upheld or not; if on the other hand, the son waited till his father's application was disposed of, he would be too late and his application should be rejected on that ground. Thus, according to the appellant, because the father chose to apply under Rule 90, the son should be deprived of his right. That is the position taken up, but the son's rights cannot be made to depend upon the conduct of his co-judgment-debtor. It would no doubt be quite a different matter, if in the event the sale of the father's interest had been set aside. In that case, under the very terms of the decree the son would be liable to pay a larger amount than he has chosen to deposit under Rule 89; but that is not what has happened and I must therefore uphold the lower Court's order and dismiss the appeal with costs of the son (defendant 2).
4. The appellant (the auction-purchaser) will be at liberty to draw out the price he paid, namely, Rs. 7,510 along with the 5 per cent deposited by the son and interest, if any, on these sums standing to the credit of the proceeding.
5. I agree that defendants made his deposit within the meaning of the new proviso to Rule 89, Order 21, Civil P.C. His undivided share of the property was liable at the time it was put for sale in execution to a determined part of the decree-debt, and it was put up for sale to realize that part of the decree-debt. He deposited that part of the decree-debt with the addition of poundage and the 5 per cent due to the auction purchaser. In consequence of the curious way in which the decree was framed he has fortunately for himself been able to come within the meaning of the proviso. I agree that this appeal must be dismissed with costs as proposed.