1. This is an appeal against the decision of the learned District Judge of Burdwan, dated the 21st May 1917, reversing the decision of the Munsif of the same place. The suit was brought to annul an encumbrance, that right being given under Section 167 of the Bengal Tenancy Act, on the footing that the plaintiff had purchased the property in execution of a rent decree and that he had been in possession. The plaintiff also asked for a further relief, namely, for a declaration that a decree in a mortgage suit obtained by the defendants was not enforceable. The facts are clearly found by the learned Judge of the lower Appellate Court. What happened is this: This mortgage which was a small mortgage was dated in 1905. A suit was brought to enforce the mortgage in July 1913 and a decree was obtained for Rs. 400. The plaintiff purchased in execution of a rent decree the property on the 17th December 1913. The amount he paid into Court was more than sufficient to satisfy the rent decree and, therefore, there was a surplus amount remaining in Court after satisfaction of the rent decree. The present defendants, on the 9th January 1914, applied for payment of the mortgage decree out of the surplus money remaining in Court after the satisfaction of the rent decree and, on the 20th February 1914, the surplus money was attached. By some means or other, the attachment was withdrawn. We need not go into that in the present appeal. But the result was that, instead of the money being received by the defendants, the mortgagees, in discharge of their mortgage decree, part of the money went to the judgment-debtor and a portion apparently to another encumbrancer. The defendants also suggest that the plaintiff got a portion. That is not established in the present case and it must be left open. It is in dispute as to whether the plaintiff did or did not receive a portion of this surplus money. On the 2nd August 1915 notice was served under the provisions of Section 167 of the Bengal Tenancy Act for the annulment of the mortgage decree and, on the 12th August 1915, this suit was instituted.
2. The first point in this case is: 'Had the defendants under their mortgage and mortgage decree a charge on the surplus proceeds' The case is covered by authority that they had a charge. The decision in Gobind Sahai v. Sibdut Ram 33 C. 878 is clearly in point. If they had this charge on the money, then prima facie they ought to have their mortgage satisfied out of that charge, because the charge was given under the provisions of Section 73 of the Transfer of Property Act and that charge would subsist notwithstanding that the money had been drawn out of Court by the judgment, debtor and others, who only took subject to the charge in favour of the defendants-mortgagees. It is quite clear that, in the first instance, the defendants-mortgagees ought to proceed against these surplus proceeds drawn out by the judgment-debtor and others and, in so far as the said proceeds, the surplus assets, are insufficient or would be insufficient if the defendants had used reasonable diligence to obtain the fame after the time they had been paid into Court, the mortgaged property can be sold to make up the deficiency. It is alleged that the plaintiff or his father has drawn out a portion of this money and that, instead of making an absolute declaration that the property is not liable to be sold in execution of the mortgage decree obtained by the defendants, we ought to make a declaration that the property is liable to be sold if and in so far as the surplus proceeds remaining in Court after satisfaction of the rent decree were insufficient to pay the amount due to the defendants mortgagees, and if and in so far as those proceeds are not insufficient to pay that amount, then the defendants cannot set up the mortgage against the property. In the result, we vary the decree of the lower Appellate Court in the manner mentioned. The defendants, in the first instance, must see how much they can recover from the judgment debtor and others who have drawn out this surplus money and that sum and any money which by reasonable diligence they could have obtained out of the surplus proceeds in or towards the satisfaction of their mortgage decree must not be a charge on the mortgaged property. For any sum beyond that, of course, the mortgage decree will be capable of being executed in the usual manner. Subject to this variation, we affirm the decision of the learned District Judge. As both parties have partly succeeded, we make no order as to the costs of this appeal.