JUDGMENT
Francis W. Maclean, K.C.I.E., C.J.
1. The question we decide is only as between the present plaintiffs and the present defendants to the suit. It is perhaps hardly necessary to state this. The facts, stated shortly, are these. A mortgage of certain property dated the 11th of September 1882 was given to one Umesh Chandra. Umesh instituted a suit to realize his security, and on the 27th of April 1890 obtained a decree. The property was sold in execution of that decree, and Umesh purchased it on the 1st of December 1890 for Rs. 25. The mortgage-debt amounts to Rs. 350 or thereabouts. On the 14th of August 1901 Umesh sold the property to the present plaintiffs for Rs. 99. He did not make defendant No. 1 a party to his mortgage suit, because he was not aware that that defendant had become second mortgagee. The second mortgage to defendant No. 1 was created on the 25th of August 1889. On the 22nd of March 1900, defendant No. 1 obtained a decree in his suit, under which decree the property was Bold in 1901, and he purchased it. He did not make Umesh, the first mortgagee, a party to his suit. On the 29th of November 1902, the present suit was instituted, the object of which is to obtain khas possession of the property in dispute. Defendant No. 1, however, claims that he is entitled to redeem the plaintiffs: this claim is not disputed by the latter. The sole question is upon what terms is he to be allowed to redeem. He claims that he is only bound to pay the plaintiffs the sum of Rs. 99 (and interest, presumably), which the plaintiffs paid for the property. On the other hand the plaintiffs contend that an account must be taken of what is due for principal, interest and costs under the mortgage and that defendant No. 1 can only redeem on payment of what may be so found due. That is the contest between the parties. Whether the parties everobtained actual possession of the property has not been found. There is nothing to show that any portion of the mortgage debt has been paid off. If defendant No. 1 alleged this it was for him to show it. He will have this opportunity, if an account be directed. “We are not now dealing with any question as between the plaintiffs and their vendor Umesh.
2. The learned District Judge held that defendant No. 1 was entitled to redeem on payment of Rs. 99 and interest, and Mr. Justice Mitra, on appeal, has taken that view. The question is whether that view is correct. With great respect to the learned Judges I venture to think that it is not.
3. The defendant No. 1 can only redeem upon the footing of the existence of the mortgage; that is his only right to redeem. This is most aptly stated by Mr. Justice Bradley of the United States Supreme Court in the case of Collins v. Riggs 14 Wall. 491 which is cited at page 740 of Dr. Grhose’s well-known work on the Law of Mortgage, third edition. The learned Judge says this: “To redeem property, which has been sold under a mortgage for less than the mortgage debt, it is not sufficient to tender the amount of the sale. The whole mortgage debt must be tendered or paid into Court. The party offering to redeem proceeds upon the hypothesis that as to him the mortgage has never been foreclosed and is still in existence. Therefore he can only lift it by paying it, the money being subject to distribution between the mortgagee and the purchaser in equitable proportions so as to reimburse the latter his purchase money, and pay the former the balance of his debt.” That view is supported by the Judicial Committee of the Privy Council in the case of Nilakant Banerji v. Suresh Chandra Mullick (1897) I.L.R. 21 Mad. 64 in the passage cited by Mr. Justice Mitra. The same principle finds support in the case of Sivathi Odayan v. Ramasubbayyar (1885) I.L.R. 12 Calc. 414, 422 and the cases there cited. If we consider the position, supposing there had been no sale by the mortgagee to the present plaintiffs, it could scarcely have been contended with any reasonable chance of success, that defendant No. 1 in those circumstances could have redeemed the first mortgagee upon payment merely of the sum of Rs. 25, for which he purchased the property, with interest. Then, as between the defendant No. 1 and the plaintiffs, can it make any difference that the latter are not the original purchasers? They are the transferees of the first mortgagee and stand in his shoes. We are not deciding any question as to the relative rights of the present plaintiffs and Umesh, the original mortgagee, but only as between the plaintiffs and defendant No. 1. The plaintiffs stand in the position of the original mortgagee, and as between themselves defendant No. 1 can only redeem on payment of what is due upon the mortgage of the original mortgagee. I think the proper decree to make is one directing an account of what is due for principal, interest and costs upon the original mortgage and upon payment of that sum to allow defendant No. 1 to redeem.
4. Umesh, the first mortgagee, ought perhaps to have been made a party to the suit. Defendant No. 1 now takes exception that he is not a party, but he has not taken this objection before, and we feel some difficulty in bringing him in at this late stage. Nothing has been said to us about interest, which will be at the rate mentioned in the mortgage. If the plaintiffs have been in actual possession they must either as against the interest bring into account any profits they have received or be disallowed interest during that period. If defendant No. 1 do not redeem within the period of six months from this date the plaintiffs will get khas possession.
5. The plaintiffs are entitled to their costs of the litigation throughout, which they may add to their security.
Geidt, J.
6. I agree.
