1. The facts of this case are somewhat complicated; but they are fully set out in the judgment under appeal and we need not repeat them. The equities between the parties have to be ascertained on the application of principles which regulate the rights of sub-mortgagees.
2. The plaintiffs are sub-mortgagees with respect to property No. 4 mentioned in the schedule to the plaint. The property belonged to Durga Prasad and he mortgaged it first to one Mohan Lal. Then he gave a zurpeshgi lease for Rs. 2,000 to defendants Nos. 1 and 4 and the father of the defendants Nos. 2 and 3. The mortgage money was Rs. 2,000 and the mortgagees were to remain in possession under the covenants in the deed and pay as huq aziri a certain sum to Durga Prasad. Mohan Lal's debt was paid off by the mortgagees. In order to pay off the debt due to Mohan Lal and for other purposes, the mortgagees sub-mortgaged property No. 4 as well as three other properties of theirs to the plaintiffs.
3. After the execution of the sub-mortgage, the mortgagees failed to pay the huq aziri to Durga Prasad. Durga Prasad instituted a suit for rent, though the suit might be dealt with as a suit on a contract between the parties and not strictly as suit for rent. He got a decree and sold the interest of the mortgagees. It is not clear what was the precise interest which was sold whether it was the lease-hold interest or the entire zurpeshgi interest. It is unnecessary, however, to discriminate between interest of the mortgagees and their interest as lessees, because the two interests were combined and the sub-mortgagees, the present plaintiffs, not having been parties to the rent suit or suits and their sub-mortgage not having been dealt with under the procedure laid down under Section 167 of the Bengal Tenancy Act, the sub-mortgage must be considered as subsisting notwithstanding the sale of the lessee's interest. The sub-mortgagees had either the right to redeem the interest which was acquired by Durga Prasad or to sell the interest of their mortgagors, the original mortgagees. The decree in such a case would be a decree for sale of property No. 4 for Rs. 2,000 less any amount that might be recovered by sale of other properties and less such money as was payable by the mortgagees to Durga Prasad as hug aziri with liberty to Durga Prasad to redeem property No. 4 by paying off the amount thus found. The Subordinate Judge did not pass a decree exactly in that form. He, however, passed a decree which satisfied the plaintiffs but Durga Prasad was not satisfied.
4. The learned Counsel for the plaintiffs-appellant has not attempted to support the decree of the first Court in so far as its form is concerned. He contended that the decree should be a decree as in an ordinary mortgage suit with limitations as to marshalling and as to rights purchased by Durga Prasad under his decree. On the other hand, it has been contended by the learned Counsel for Durga Prasad that, as sub-mortgagees, the plaintiffs have not the right to bring the mortgaged property to sale.
5. Two authorities have been cited before us from the Reports of the Allahabad High Court and also a case of the Madras High Court in which a contrary view was taken. Ganga Prasad v. Chuni Lal 18 A. 113; Ram Jattan Rai v. Ramhit Singh 27 A. 511; Muthu Vijia Raghunatha Ramachundra Vacha Mahali Thurai v. Venkatachallan Chetti 20 M. 35. One of the objects which a Court of Equity ought always to have in view is to minimize the number of cases which may arise out of the relation between the parties to a mortgage. The view taken by the Allahabad High Court would involve the necessity of two suits, a suit on the sub-mortgage, and, after the foreclosure of the interest of the sub-mortgagors, a suit on the original mortgage; whereas, according to the practice which is followed in the Courts of Equity and the Madras High Court, the equities between the parties may be adjusted in one suit by allowing the sub-mortgagee to bring the property mortgaged to sale for the amount of the original mortgage.
6. The second difficulty attempted to be raised in the plaintiff's' way is that there was no formal transfer or assignment of the zurpeshgi interest, but no formal assignments are necessary in this country.
7. The original mortgagees failed to pay to Durga Prasad the huq aziri for a time and Durga Prasad had to bring suits for arrears of rent. If an account were taken between the zurpeshgidars and Durga Prasad the amount payable as huq aziri would have to be taken into consideration and a reduction would have been allowed from the mortgage money. Durga Prasad is entitled to the benefit of this amount. The amount has been found on calculation to be Rs. 805-14-5 gds. This amount should be deducted from the sum of Rs. 2,000 and an order should be made for sale of property No. 4 for the balance, if the balance be not further reduced by the sale of properties Nos. 1 to 3.
8. As regards the subsequent period from the date of sale, we are of opinion, that the balance thus found should bear interest at 12 per cent. per annum. The sum of Rs. 194 and odd which is in deposit in Court may be paid back to Durga Prasad.
9. The plaintiffs will get their costs in this litigation from the defendants Nos. 1 to 4. As between the plaintiffs and Durga Prasad, each party will bear his and their own costs throughout. The costs payable by the defendants Nos. 1 to 4 to the plaintiffs should be added to their mortgage money.