1. The facts as they may be gathered from the record, are these : The petitioner had mortgaged some lands to one Ishan Chandra Dutta on the 3rd Jaistha 1324. He then executed another mortgage in respect of the same lands to the opposite party on the 11th Ashar 1325. Ishan Chandra Dutta sued on his mortgage, obtained a decree and advertised the mortgaged properties to sale The opposite party deposited the decretal amount due to Ishan Chandra Dutt any saved the mortgaged properties from sale and then institued the suit out of which this Rule has arisen for recovering the amount so deposited by him together with costs of the deposit. The Munsiff decreed the suit, and that decree has been affirmed on appeal by the Subordinate Judge. The petitioner then obtained this Rule.
2. The contention urged on behalf of the petitioner is that the suit as laid was not maintainable and that the rights acquired by the opposite party under Section 74 of the Transfer of Property Act are the only rights which he is competent to enforce under the law. It may be mentioned here that this contention was not put forward in the trial Court. It was taken for the first time in the Court of appeal which overruled it, relying on the authority of the decision in the case of Shib Lal v. Munni Lal A.I.R. 1922 All. 153. At first we were not inclined to allow the petitioner to raise this contention as it was not raised in the Court of first instance, but as the petitioner is content to urge it as a pure question of law requiring no fresh investigation into facts, we have heard both sides on it and propose to deal with it on that footing.
3. It has been urged on behalf of the petitioner that Section 74 of the Transfer of Property Act lays down all the rights which a second mortgagee acquires on paying off the first mortgagee and that to allow a suit of this description will in many cases lead to hardship, e.g., where the mortgagor may not have any property other than the one mortgaged or in cases where there was not or there is no longer any personal remedy available to the first mortgagee himself.
4. Section 74 of the Transfer of Property Act confers a statutory right on the subsequent mortgagee to pay off the prior mortgagee and contemplates a tender being made and a receipt being given and on these conditions being fufilled a statutory right is created in and the power is conferred oh the subsequent mortgagee in respect of the mortgaged property itself. Such payment must be of the whole amount due, and if the money is not accepted and receipt is not given the money may be tendered in Court antler Section 83 of: the Transfer of Property Act or the tenderer may sue for the enforcement of his rights. There are thus Special conditions on which the right and power mentioned in the section ares founded. There is, in my opinion, no foundation for the supposition that the right of a person to be reimbursed for paying money due by another in the payment of which he is interested, a right which is recognized, in Section 69 of the Contract Act is a much wider right than is permitted by the English Common Law rule, was intended to be in any way taken away by Section 74 of the transfer of property Act. Where there was originally no charge on the property and payment has been made under circumstances which attach the operation of the Section 69 of th9 Contract Act, the Courts have often, in addition to the right of reimbursement, declared in favour of the person making the payment, a charge upon the property in respect of the money paid, enuring either by operation of law or upon equitable grounds. Where the requirements of Section 69 of the Contract Act are satisfied and payment has been made in order to pay off an existing charge or a mortgage debt, this right to be reimbursed has never been denied, though there is a sharp conflict of judicial opinion on the question as to whether apart from the principle of subrogation an equitable charge may not also be recognised. If this right to be reimbursed was meant to be taken away simply for the reason that the person making this payment happens to be subsequent mortgagee and the payment happens to be made for paying off the prior mortgagee, the legislature, would have somewhere given a clear indication of that intention. Then as regards hardship I fail to see any force in this argument, because if the first mortgagee had no personal remedy, the mortgagor would not, in such a case be a person bound by law to pay the money due under the first mortgage and Section 69 of the Contract Act would scarcely help the subsequent mortgagee who makes the payment. It is not necessary in the present case to pursue this matter any further as there are no findings as to whether there was a personal covenant in the first mortgage or whether the personal remedy was available; to the first mortgagee at the date of his suit, and indeed the proper materials on which a decision on these, questions, could be arrived at were not brought on the record as the questions were never raised.
5. On principle also there is hardly anything that militates against-this view. There is abundant authority for the proposition that a mortgage who abandons his lien under the mortgage is competent to bring a simple suit for recovery of the money the payment of which created the lien in his favour : see Lachman Singh v. Salig Ram  8 All. 384, Anandi Ram v. Dur Najaf Ali Begam  13 All. 195, and Sarajubal v. Kamini Kumar A.I.R. 1926 Cal. 765, and this view receives support from the decision of the Privy Council in Nugender Chunder Ghose v. Sreemutty Kaminee Dossee  11 M.I.A. 241. In my judgment there is no appreciable reason why a case like the present should not be governed by a similar principle.
6. The petitioner's contention, in my opinion, fails. The Rule accordingly is discharged with costs. Hearing fee : 2 gold mohurs.
7. The point involved, namely, whether the subsequent mortgagee is restricted to his right of suit under Section 74 of the Transfer of Property Act, or can independently maintain a. suit in the present form and obtain a personal decree, is not altogether free from doubt. I agree, however with my learned brother, that both remedies are available.