1. The facts giving rise to this appeal may be shortly stated as follows : Three brothers to wit Janaki, Mathuranath and Jamini borrowed money from the Faridpore Loan Office on a mortgage of certain properties. The loan office instituted a suit on the mortgage against the three brothers and recovered a decree for over two lacs of rupees on 1st August 1927. The decree was satisfied by payments made by all the three brothers who had to borrow money for this purpose from Santosh's six annas estate. At the time of payment, there was a dispute I between the parties as regards the amount payable by each one of the mortgagors and the dispute centred round the sum of Rs. 1291-0-0 odd which according to Janaki was payable by Mathuranath while according to the latter it was to be paid by Janaki. Eventually Janaki paid this amount and later on he instituted a suit being Money Suit No. 10 of 1982 against Mathuranath and Jamini for recovery of this amount. The trial Court dismissed the suit against Jamini but gave a decree to Janaki against Mathuranath. There was an appeal against this decision which affirmed the decision of the trial Judge.
2. The appellants before us are the heirs of Mathuranath while the respondent is the son and heir of Janaki. The respondent applied for execution of the decree obtained in Money Suit No. 10 of 1932 against the present appellants sometime in July 1940 and in course of these execution proceedings there was an application made by the appellants under Sections 84 and 86, Bengal Money-Lenders Act. They prayed for re-opening of the decree and for making a new decree in accordance with the provisions of the Bengal Money. Lenders Act. In the alternative, it was prayed that the judgment-debtors should be relieved of post decree interest and might further be allowed to pay the decretal dues in certain instalments as provided for in Section 84(1), Clause (b), Bengal Money-Lenders Act. The trial Court dismissed the application primarily on the ground that the liability of Mathuranath to pay this money to Janaki was not a loan within the meaning of the Bengal Money-Lenders Act and consequently the provisions of that Act were not attracted to the facts of this case. There was an appeal against this decision to the Court of the District Judge of Mymensingh and the appellants confined their claim to reliefs under Section 34(1), Clause (b), Bengal Money-Lenders Act, only. The District Judge was of opinion that if the decree could be re-opened under Section 86 of the Act no relief by way of instalment could be given to the borrower under Section 34(1), Clause (b) and he dismissed the appeal on the ground that it was not competent.
3. It is against this decision that the present second appeal has been preferred. We may say at the outset that the ground upon which the learned District Judge based his decision is not tenable in law. Section 34(1), Clause (b), Bengal Money-Lenders Act, provides for a remedy which is quite independent of the provisions of Section 86. There is no question of re-opening of a decree under Section 84(1), Clause (b) but the reliefs which are specified in that section would be available to a borrower even if the decree is kept unopened. The question however still arises for our consideration as to whether in this case there was really a suit for recovery of the loan which would enable the appellants to claim benefit under Section 34(1), Clause (b) of the Act. Dr. Sen Gupta who has appeared in support of the appeal argues that by paying the mortgage money in excess of his share Janaki was really subrogated to the rights of the mortgagee in respect of that excess payment under Section 92, T.P. Act, and as Janaki was really in the position of a mortgagee he cannot but be a lender and Mathuranath a borrower within the meaning of the Bengal Money-Lenders Act. It is also said that in substance the money paid by Janaki was a loan and hence comes within the definition of loan as given in Section 2(12), Bengal Money-Lenders Act.
4. So far as the first point is concerned, it is perfectly true that one of several mortgagors who redeems the entire mortgage is entitled to be subrogated to the security of the mortgagee and he is to be regarded as an assignee of the incumbrance so far as the shares of his co-debtors are concerned and he can recover from his co-debtors by means of such security the proper share of their indebtedness which was discharged by him. It has been argued by Mr. Das in this case that Section 92, T.P. Act, would only apply when the entire mortgage is redeemed. In the case before us the payment was by all the three mortgagors each one of whom contributed towards payment of the mortgage money and it was only a matter of dispute as to how much was payable by each one of the mortgagors having regard to the previous payments made by him. It is said, therefore, that in these circumstances it cannot be said that the payment of Rs. 1291 odd by Janaki really went to redeem the entire mortgage. On the other hand, it is contended by Dr. Sen Gupta that the mortgage could not have been redeemed even after the payments were made by the other mortgagors unless the sum of Rs. 1291-0-0 odd was paid by Janaki and this sum therefore was really paid for the purpose of redeeming the entire mortgage. We do not think that it will be necessary for our present purpose to enter into a detailed discussion with regard to this point.
5. The short point for our consideration in this case is whether the suit that was instituted by Janaki against Mathuranath and Jamini was a suit in respect of a loan as contemplated by the Bengal Money-Lenders 3 Act. It is not disputed that Janaki did not institute a suit to enforce his rights as a subrogee of the mortgage security. It was a simple money suit based not upon Section 92, T.P. Act, but upon the allegation that the plaintiff had to pay more than his share of the common debt. It is well established that the right of a Coaharer to be reimbursed by his other cosharers in respect of money paid by the former in excess of his share does not arise out of any contract express or implied but is founded on principles of equity and justice. The fiction of an implied contract might have been necessary in early English law for the purpose of bringing it within the purview of the common law rules of pleadings but it is quite unnecessary in modern times particularly in this country where these technical rules had never any application.
6. The controversy, therefore, centres round the point as to whether the claim laid by the respondent in the suit was a claim for a loan. Now loan as defined in Section 2(12), Money-Lenders Act, means an advance whether of money or in kind made on condition of repayment with interest and includes any transaction which in substance is a loan. We are unable to hold that the sum of Rs. 1291-0-0 odd which was paid by Janaki could be treated as an advance to Mathuranath. Janaki was liable along with his other co-mortgagors for payment of the entire mortgage debt and the payment was certainly made for the purpose of redeeming the entire mortgage and freeing his own share from the incumbrance-Mathuranath was bound to reimburse Janaki for the payment he made but that was because he was benefited by the payment and not because in form or in substance it was an advance made to him. We cannot but hold that the other condition necessary to constitute a loan is also not fulfilled here. There was no question of payment of any interest when the money was paid and the interest that was demanded in the suit was not on the basis of any contract either express or implied but on the basis of damages. In these circumstances, we are of the opinion, that the trial Court was right in holding that the transaction did not amount to a loan within the meaning of the Bengal Money-Lenders Act and consequently the appellants were not entitled to any relief under Section 34(1), clause (b), Bengal Money-Lenders Act. The appeal is accordingly dismissed. As the lower appellate Court based its decision on a wrong view of law we direct that there will be no order for costs. The rule is discharged. There will be no order for costs in the rule.