1. This is an appeal on be-half of the defendants in an action commenced by the plaintiffs for recovery of a sum of money alleged to have been paid by them under Section 310A of the Code of Civil Procedure of 1832, to set aside a sale in execution of a decree for arrears of rent. It appears that the plaintiffs were mortgagees of the properties in respect of which the landlord obtained a decree for arrears of rent. The plaintiffs sued to enforce their securities and obtained decree on the 29th January 1901 and the 8th February 1904. Meanwhile the mortgagors, now appellants before us, defaulted to pay rent to the superior landlord who obtained a decree against the registered tenant on the 7th December 1901. On the 16th July 1903 and the 11th April 1904, two sums were paid by some of the judgment-debtors towards partial satisfaction of the rent-decree but as the debt was not satisfied in its entirety the landlord decree-holder proceeded to sell the tenure on the 21st December 1904. The plaintiffs thereupon deposited on the 20th January 1905 a sum sufficient under Section 310 A of the Code of 1882, for the reversal of the sale. The sale was accordingly set aside on the 11th February 1905. On the 20th January 1908, they commenced the present action for recovery of the money they had deposited together with interest and costs.
2. The Courts below have concurrently decreed the suit. In the present appeal, that decree has been assailed on the ground that the payment was voluntary and the plaintiffs are not entitled to ask for restitution from the defendants. In our opinion, there is no substance in this contention. The learned Vakil for the appellants has argued that, inasmuch as the plaintiffs had obtained decrees on the footing of their securities, they were not liable to have their interest affected by the sale in execution of the rent-decree, and that in substance they had no interest to protect. It has not been disputed and, in view of the decision of a Full Bench of this Court in the case of Paresh Nath Singha v. Nobo Gopal Chattopadhaya 29 C. 1 it cannot be disputed, that if the plaintiffs had not obtained a decree on the basis of their mortgage, they would have been entitled to have the sale set aside under Section 310A. The question, therefore, arises whether the fact that they had obtained decrees, in any way altered their position.
3. Section 159 of the Bengal Tenancy Act provides that where a tenure or holding is sold in execution of a decree for arrears due in respect thereof the purchaser shall take subject to the interests defined in Chapter XIV, as ' protected interest' but with power to annul the interests defined in that Chapter as 'encumbrances.' Section 161 then lays down that the term 'encumbrance' used with reference to tenancy means any lien, sub-tenancy, easement or other right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein, and not being a protected interest as defined in station 160. It cannot be disputed that a mortgage created by a tenant is a lien on his tenure or holding and is, consequently, an encumbrance within the meaning of Section 161. It has been suggested, however, that as soon as mortgagee obtains a decree, he ceases to have any lien on the tenure or holding, in other words, that his interest is no longer an encumbrance on the tenure within the meaning of Section 161, This contention is obviously unfounded. It was pointed out by this Court in the case of Bibijan Bibi v. Sachi Bewa 21 C. 863 that the security is not extinguished till the sale has taken place in execution of the mortgage-decree and the proceeds have been distributed in satisfaction of the sum due to the mortgagee. This principle was applied in the case of Surjiram Marwari v. Barhamdeo 2 C.L.J. 202 and Bhawani Koer v. Muthura Prasad 7 C.L.J. 1 and is in fact supported by the decision of Lord Ellenborough in Drake v. Mitchell 3 East 251 : 7 R.R. 449 that a judgment recovered in any form of action is still but a security for the original cause of action until it be made productive in satisfaction to the party. If we were to give effect to the contention of the appellant, the result would be that as soon as a mortgagee obtains a decree on his security, his position becomes worse than what it was when he was a mortgagee, pure and simple. It has not been disputed, as we have already observed, that as mortgagee he would have encumbrance liable to be annulled by the purchaser at the sale for arrears of rent. It cannot also be disputed that if he purchased the property in execution of his own decree, his interest would be equally liable to be annulled by the purchaser at the sale in execution of the decree for arrears of rent, although such decree was obtained against the registered tenant. But, it is suggested, that his intermediate position is different; that is, after the decree has been obtained, he would have no lien at all on the property. We are not able, for the reasons stated, to give effect to this contention as well-founded on principle.
4. But it has been contended that the view which may thus be defended on principle is opposed to the decision of this Court in Moharanee Dasya v. Harindra Lal Roy 1 C.W.N. 458 and Manindra Chunaer Nundy v. Jawaher Kumari Bibi 9 C.W.N. 670. These cases, however, are clearly distinguishable. There the purchaser at the sale in execution of the mortgage-decree acquired the property subject to pre-existing rent charges. When, therefore, after his purchase as full owner he paid the rent charge, he could not claim to recover that sum from the judgment-debtor whose interest he had purchased. This conclusion is based on the principle that the purchaser at the sale in execution of the decree of the mortgagee acquired the property subject to the rent charge, and consequently when he discharged that rent charge, he simply fulfilled his own obligation. The dictum in Akhoy Kumar v. Bejoy Chand 29 C. 813 at p. 818 cannot be taken to involve a final decision upon the point. Our attention has also been invited to the decisions in Bepin Behary Sarnokar v. Kali Dass Chatterjee 6 C.W.N. 336 and Baikunta Nath Dev v. Udoy Chand Maiti 2 C.L.J. 311. These were cases in which the person who made the payment to have the sale set aside was a person whose interest had not been affected by the sale which he sought to get reversed. In the first of these cases, the decree for rent had been obtained with respect to non-agricultural land and the purchaser of a sale in execution of such a decree does not acquire the property free from encumbrances. In the second case, the sale sought to be set aside was a sale under the Public Demands Recovery Act which passes to the purchaser merely the right, title and interest of the judgment-debtor. On the other hand, there are cases in the reports which undoubtedly militate against the contention of the appellant, and amongst these may be mentioned Smith v. Dinonath 12 C. 213; Jugdeo Narain Singh v. Raja Singh 15 C. 656; Abdul Wahid Khan v. Shaluka Bibi 21 C. 496 : 21 I.A. 26; Bindu Bashini Dassi v. Harendra Lal Roy 25 C. 305 : C.W.N. 150 and Upendra Chandra Mitter v. Tara Prosanna Mukerjee 30 C. 794.
5. The learned Vakil for the appellant has finally contended that the present case is clearly beyond the operation of the provisions of Sections 69 and 70 of the Indian Contract Act. In so far as Section 69 is concerned, it may be conceded that it has no application, because it provides that a person who is interested in the payment of money which another is bound by law to pay, and who, therefore, pays it, is entitled to be reimbursed by the other. It may be assumed that the present defendants as judgment debtors under the rent-decree were not bound by law to make a payment under Section 310A. to have the sale of the property set aside. But, when we examine Section 70, its terms appear to be comprehensive enough to cover the case. That Section provides as follows: 'Where a person lawfully does any thing for another person or delivers any thing to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect thereof, or to restore the thing so done or delivered.' It cannot he disputed that the payment in the present case was made lawfully. The money which was deposited by the plaintiffs was such as they were entitled to deposit under Section 310 A of the Code of 18S2. The deposit was made in the presence of the present defendants who, as judgment-debtors, were parties to the execution proceedings in the course of which the sale had taken place. The payment was further accepted by the Court. Under these circumstances it cannot be suggested that the payment was not made lawfully. But it has been suggested that the defendants are not the persons who have enjoyed the benefit thereof. In support of this proposition reliance has been placed upon the decision of the Madras High Court in Yogambal Boyee v. Naina Pillai 33 M. 15 : 3 Ind. Cas. 110 : 6 M.L.T. 162 : 19 M.L.J. 489. In that case, it appears to have been laid down that Section 70 has no application where the payment is made under such circumstances as to make it impossible for the person who is benefited thereby to refuse to accept the benefit conferred upon him. The learned Judges pointed out that the Section appears to have been modelled on the principle recognised in the oases of Lampleigh v. Brathwait 1 Smith L.C. 11th Ed. 160 and that, interpreted in the light of that decision, the term' enjoys' ought to be construed to mean 'accepts and enjoys.' We are not prepared to adopt this narrow construction of the section. The effect of it would be to exclude the operation of the Section in all cases where statutory payments are made for the protection of a property by a person who, but for such payment, might be seriously prejudiced. We may further point out that the interpretation which has been suggested is opposed to the decision of this Court in the case of Mahendra Ghoshal v. Bhuban Mardana 12 C.L.J. 566 : 6 Ind. Cas. 810 : 38 C. 1 : 14 C.W.N. 945 where a payment made under Section 3101 of the Code of 1882, was treated as a valid payment for the purposes of Section 70 of the Indian Contract Act. Reference has also been made to the case of Hurt Das v. Panchkowri 9 Ind. Cas. 615 which, however, does not really militate against the view we propose to take. The decision in Yogambal Boyee v. Naina Pillai 33 M. 15 : 3 Ind. Cas. 110 : 6 M.L.T. 162 : 19 M.L.J. 489 was cited before Mr. Justice Coxe, but, as we read his judgment, he did not express his approval of the interpretation put upon Section 70. On the other hand, he rests his judgment upon the perfectly intelligible ground that as the person who made the payment had, as a matter of fact, no interest to protect, he could not claim to be reimbursed. We are, therefore, of opinion that the present case is completely covered by Section 70.
6. It has finally been suggested that the decree ought to have determined the separate liability of each of the several defendants. In our opinion, there is on substance in this contention. This is not a suit for contribution the nature of which was fully explained in Matichand v. Bajrang Sahai S.A. No. 1878 of 1909. The plaintiffs were not bound to bear any portion of the burden upon the failure of the defendants to pay rent which under the law they were bound (to pay to the superior landlord. The plaintiffs are entitled to a joint decree against all the defendants. When they realise their dues by execution, if necessary, it will be open to the defendants to settle their liability inter se; the plaintiffs are obviously interested in no way in the determination of that question.
7. The result is, that the decree of the Court below is affirmed, and this appeal dismissed with casts to the plaintiffs-respondents.