Satyanarayana Rao, J.
1. The plaintiff is the appellant. The suit was for recovery of a sum of Rs. 2,293-12-7 by selling the lands in the possession of the various defendants who have been impleaded as parties to the suit. The wife of the first defendant who is the 36th defendant obtained a maintenance decree in O.S. No. 41 of 1921, Sub-Court, Rajahmundry, against the first defendant. The decree also gave a charge against the properties of the first defendant which are items 1 to 42 of the plaint schedule. The plaintiff purchased on 13th February, 1931, under Ex. P an extent of five acres and 82 cents from the first defendant and the deed of sale executed in his favour contained also an indemnity in his favour charging items 30, 31, 32 and 34 for the amount of loss that might possibly accrue to the plaintiff in case the properties sold to him were to be sold in execution of the maintenance decree. The decree-holder in O.S. No. 41 of 1921, in fact, brought the properties purchased by the plaintiff to sale and the plaintiff was obliged to pay a sum of Rs. 1,500 to avert.the sale. He now claims that he is entitled to contribution from the other items in the possession of the various defendants, some of whom were also purchasers from the first defendant and the Official Receiver of the various items. As many as 17 issues were framed in the suit. The learned District Munsiff recorded findings on issues 1, 3, 7, 8, 15, 16, 2 and 6. In the view he took of the case, he was of opinion that as the plaintiff had an indemnity, in respect of which a charge was also created over items 30, 31, 32 and 34, he was not entitled to contribution. The result was that the suit was decreed with costs against items 31, 32 and 34 in the possession of defendants 2, 5, 49 and 52 to 55 and was dismissed in respect of other items. As regards item 30 which was sold in Court auction in pursuance of the maintenance decree and the surplus sale proceeds of which were in Court, the decree of the District Munsiff was that the surplus sale proceeds of item 30, if any, remaining in deposit in the Sub-Court to the credit of O.S. No. 41 of 1921 should be proceeded against by the plaintiff and credited towards this decree.
2. In so far as the plaintiff's suit for contribution was dismissed, he preferred an appeal to the Sub-Court. The learned Subordinate Judge agreed with the view of the learned District Munsiff, and following a Full Bench of this Court in Damodaraswami v. Govindarajulu1, he dismissed the appeal.
3. In this second appeal, the only question that was argued was that the Court8 below have entirely misunderstood the decision of the Full Bench in Damodaraswami v. Govindarajulu : AIR1943Mad429 which overruled the earlier decisions to the contrary and followed the decision in Ramabhadrachar v. Srinivasa Iyengar I.L.R. (1900) Mad. 85. I think that this contention is well founded. The decision of the Full Bench far from supporting the contentions of the defendants, as the learned Subordinate Judge wrongly assumed, supports the plaintiff. The argument that was accepted by the Courts below was that the indemnity clause contained in Ex. P constituted a ' contract to the contrary ' within the meaning of Section 82 of the Transfer of Property Act. The expression ' contract to the contrary ' occurring in Section 82 was interpreted by the Full Bench as meaning a contract between the mortgagee on the one hand and the mortgagor or mortgagors on the other and not a contract inter se between the mortgagors or their representatives in interest. In view of this express and binding decision on the point, it is unnecessary to refer to the earlier cases. I am therefore of opinion that the view of the Courts below that the plaintiff was not entitled to contribution from the other items is unsustainable.
4. There is, however, a security created under Ex. P under the indemnity clause contained therein. The plaintiff can only proceed to enforce his claim for contribution after realising such amount as is possible to realise from items 30, 31, 32 and 34 and giving credit to it. This was also the course adopted by the plaintiff in Ramabhadrachar v. Srinivasa Iyengar I.L.R. (1900) Mad. 85. I think that the owners of the other items would be entitled, on the principle of marshalling contained in Section 81 of the Transfer of Property Act, to insist that the plaintiff should proceed first against items 30, 31, 32 and 34 and then only enforce a claim for contribution against the other properties for the balance. The trial Court, however, has not decided issues 4, 5 and 9 to 14; and in the view that the claim for contribution is mainteshable, these issues have now to be determined. It will be open to the parties to urge all the contentions that are open to them under those issues and raised by them in their written statements. Liberty is also given to both the parties to adduce such evidence as they choose to place before the Court on those issues. The second appeal is therefore allowed, and the suit is remanded for disposal of the issues above specified in the light of this judgment. The parties will bear their own costs in this Court and also in the lower appellate Court. The District Munsiff will provide for costs of the trial before him. The decree of the District Munsiff against items 30, 31, 32 and 34 with costs as decreed by him will stand.
5. If any item of property has been sold and the amount of sale consideration is available, the claim for contribution will attach to the amount that is available. Court-fee paid on the memorandum of second appeal and in the lower appellate Court will be refunded.
6. No leave.