1. Shama Sundari defendant No. 1 executed in favour of one Jaga Nath Shaha, defendant. No. 2, two mortgage bonds by which as security for payment of the mortgage debts she hypothecated 8 annas share of the darpatni right in Taraf Nathi. The first of these deeds was executed on the 16th Agrahan 1302 (28th November 1895) and was for a debt of Rs. 621; the second was executed on the 29 th Jaista 1304 6th June 1897, and was for a debt of Rs. 713.
2. Shama Sundari with her daughter, daughter's son, etc., executed on the 20th June 1898 a third mortgage bond in favour of the plaintiff, Hari Narain Banerji, to covera debt of Rs. 4,237 and hypothecated as security not only the 8th anna darpatni right already mortgaged in the two previous bonds but also the 8 anna patni right in the same property and eight anna zemindari and putni rights in other properties.
3. On the 14th January 1903, the plaintiff paid off the two debts due on the bonds of Jaga Nath Shah and the payments were endorsed on the bonds and the bonds handed over to the plaintiff.
4. On the 14th January 1905, the defendant No. 1 sold to defendants Nos. 3, 4 and 5 the 8 annas darpatni right in Taraf Nathi which had been hypothecated in the two mortgage bonds executed in favour of Jaga Nath Shah.
5. The present plaintiff brought a suit to enforce his mortgage of the 20th June 1898 and obtained a decree. The decretal debt was paid off with the money obtained from defendants Nos. 3, 4 and 5.
6. The present suit was instituted on the 8th July 1905 by the plaintiff to recover the money which he had paid to Jaga Nath Shah in discharged the two debts due to him from Shama Sundari Dasi under his two mortgage bonds.
7. The main points raised in the lower Court in defence to the suit were (1) that the plaintiff was not entitled to bring the suit to recover the money due on the bonds executed in favour of Jaga Nath because the receipts given to him by Jaga Nath Shah had not been registered as required by Sections 17 and 49 of the Registration Act and (2) that the suit was barred by the provisions of Section 43, Civil Procedure Code, as the plaintiff was bound to include in his suit, brought for the enforcement of his mortgage debt, the claim which he had after discharging the debts due to the prior mortgagee.
8. The lower appellate Court has held that both these pleas should prevail and has dismissed the plaintiff's suit. Further the District Judge has held that Section 85 of the Transfer of Property Act would have applied and that the plaintiff was bound in his suit to enforce his own mortgage to include the claim which he now sets forward on the ground that he has paid off the prior mortgage debts.
9. The plaintiff has appealed. The same two points have been pressed in appeal before us.
10. On the first point we are unable to agree with the view taken by the lower appellate Court that registration of the receipt was required by the Law in order to give the plaintiff all the rights and powers of the prior mortgagee. There can be no doubt, and the contrary is not even suggested by the defendants that the plaintiff, when paying off the debts due to Jaga Nath Shaha, had no intention of extinguishing the mortgage so as to relieve mortgagor from all future liability for the the mortgage debts. In such circumstances, we have no doubt that the provisions of Clause (n) of Section 17 of Act III of 1877 (which was added by the amending Act VII of 1886) apply and that such endorsements are expressly excluded by it from the operation of Clause (c) of the same section. The endorsements in the present case are endorsements acknowledging the payment of the whole or any part of the mortgage money, or any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage. The extinction or transfer of the rights of Jaga Nath Shaha by the payment to him by the plaintiff of the sum due under the mortgaged neither purported to extinguish nor had the effect of extinguishing those mortgages. The payments were simply made by the plaintiff as puisne mortgagee for his own protection under the right given to him by Section 74 of the Transfer of Property Act, Nor was the registration of the receipt necessary as an assignment. No formal assignment of the rights of the mortgagee, Jaga Nath, to the plaintiff being under the law necessary, as the plaintiff after obtaining the receipt from Jaga Nath had, under Section 74 of the Transfer of Property Act, acquired all the rights and powers as mortgagee which Jaga Nath had under his prior mortgages. It is not, therefore, necessary for us to discuss the rulings to which we have been referred on this point. We need only say that the cases of Safdar Ali Khan v. Luchman Das 2 A. 554 and Our Dial Mal v. Jauhri Mal 7 A. 820 have no application to the present case, the facts being different. The cases of Jiwan Ali Beg v. Basa Mal 9 A. 108 and Uppalakandi Kanhi Kutti Ali Haji v. Kunnam Mithal Kottaprath Abdul Rahiman 19 M. 288 support the view which we take that endorsements on a mortgage bond of payments made in satisfaction of a mortgage, which payments did not purport to extinguish the mortgage, are covered by Clause (n) of Section 17 of the Registration Act and do not come within the purview of Clause (6) or Clause (c) of that section.
11. On the second point, however, we are of opinion that the plaintiff's suit must fail and that it is barred by the provision of Section 43, Civil Procedure Code.
12. The Judge of the lower appellate Court had expressed the opinion that the provisions of Section 85 of the Transfer of Property Act might be applied to a case like the present so as to compel the plaintiff, when bringing his suit on his subsequent mortgage, to include in it any claim that he might have on account of having paid off the two prior mortgages. Against the acceptance of this view, there is, however, the fact that the property comprised in the suit to enforce the second mortgage is the interest of the mortgagor in that property which is left after excluding the interest hypothecated under the first mortgage, that is to say, the mortgagor's right of equity of redemption of theprior mortgage Strictly speaking, therefore, the first mortgagee has not an interest in the property comprised in the second mortgage. But at the same time we doubt, having regard to the expression used in Section 85 of the Transfer of Property Act, whether it was not the intention of the Legislature that all persons interested in the immovable property, against which the plaintiff sought to enforce his mortgage, should not be made-parties to the suit whether those persons were prior or subsequent mortgagees, if the plaintiff had notice of such interests. The object of the section appears to us to be to protect alike the interests not only of all mortgagors and mortgagees but also of bona fide purchasers for value.
13. On behalf of the appellants reliance has been placed on the decision of the High Court of Allahabad in the case of Sundar Singh v. Bholu 20 A. 322 and it has been argued that under the law there is nothing to prer vent the holder of two independent mortgages over the same property from obtaining a decree for sale on each of them in a separate suit. It has been argued that Section 43, Civil Procedure Code, cannot be taken to apply as the cause of action in the suit on the second mortgage is not the same as that on the prior mortgage. In. the case relied on, however, the Judges were careful to observe that 'it was difficult to see what benefit the two decrees would be to the plaintiffs except that they might execute one of the decrees by sale of the property and if there was a surplus arising from the sale, they might probably attach the surplus in execution of the other decree'.
14. That decision has been dissented from by the High Courts of Madras and Bombay in the cases of Dorasami v. Venkatasheshayyar 25 M. 108 and Keshavram Dulavram v. Ranchhod Fekira 130 B. 156 : 7 Bom. L.R. 811, respectively. Moreover it cannot, in our opinion, be taken to apply to the facts of the present case.
15. The present plaintiff is not a mortgagee who has taken two separate mortgages from the same person, but he is a subsequent mortgagee who as such has been enabled under the provisions of Section 74 of the Transfer of Property Act to pay up the prior mortgages in order to protect and strengthen the security for payment of his debt which he held under the subsequent mortgage. Though by so doing he: acquired all the rights and powers of the prior mortgagee, he must be taken to have done so subject to his position as the holder of his own mortgage. When, therefore, he sought to enforce by suit his original mortgage against the security which by his payment of the former mortgage he has protected and made more valuable for the realisation of his debt, he was bound, in our opinion, to join in that suit any further claim which he had against that property by reason of payments made by him under Section 74 of the Transfer of Property Act, the sum so paid being treated as an addition or accretion to the claim on his original mortgage. In such circumstances, the present plaintiff was, under the provisions of Section 43 of the old Code of Civil Procedure, bound to include the present claim in the suit brought on his mortgage and as he failed to do so he is barred in the present suit from enforcing his claim or pursuing his remedy by sale of the property in suit.
16. We see no reason to differ from the view taken by the Judge of the lower appellate Court with regard to the right to a personal remedy against defendant No. 1 claimed by the plaintiff. The payment by the plaintiff to the prior mortgagee of the mortgage debt due from defendant No. 1 within six years from the due date of the second mortgage would not entitle the plaintiff to a further period of limitation against that defendant.
17. For the above reasons we confirm the decree of the lower appellate Court and dismiss the appeal with costs.