JUDGMENT
Ramaswami, J.
1. This appeal is by defendant 1 against the decree of the Subordinate Judge of Muzaffarpur in the suit for contribution under Section 82, T. P. Act. The plaintiff alleged that defendant 10 Ramaji Prasad as Karta had on 28th May 1928 executed a simple mortgage bond in favour of Bharat Singh with respect to his share in 5 touzis including 17 gandas a kauris and odd share in touzi No. 3926/2. On 2nd January 1930 Ramji Pd. executed a sale deed with respect to 4 gandas and odd share of touzi No. 3926/2 in favour of defendant 2. On the same date he executed sale-deed 9 as regards 17 gandas and odd share of touzi No. 3928/1 and touzi No. 3926/2 in favour of defendant 1. On 26th September 1932 he executed a sale-deed in favour of the plaintiff with respect to 17 gandas and odd share of touzi No. 3889/2. Defendants 4 to 9 acquired 13 gandas and odd share of touzi No. 3905/2 by auction sale in execution of a money decree. Later, defendants 13 and 14 who were the sons of Bharat Singh instituted a mortgage suit (No. 217 of 1940) against defendant 10, the plaintiff and defendants 1, 2 and 4. They obtained a decree and in execution thereof the mortgaged properties were sold on 21st September 1941. The plaintiff, however, deposited a sum of Rs. 4055/9 being the sale proceeds with damages in order to set aside the sale. The plaintiff, therefore, claimed contribution from the defendants alleging that they were all liable for payment of the decretal amount. Defendant 1 contested the suit on the ground that touzi No. 3926/2 was not liable to contribute. He asserted that defendant 10 had on 4th September 1928 executed a mortgage bond in favour of Khakan Singh, that the latter was not impleaded in the mortgage suit brought on behalf of Bharat Singh Khakhan Singh brought a mortgage suit (No. 80 of 1941), obtained a decree, in execution of which 17 gandas and odd share of touzi No. 3926/2 was sold and purchased by Nawal Kishore. But the learned munsif held that touzi No. 392/2 was liable to contribute and the plaintiff was entitled to a decree against all the defendants. This decree has been affirmed in substance by the Subordinate Judge.
2. The main question posed in this appeal is whether defendant 1 who had purchased touzi No. 3926/2 is liable to contribute the proportionate amount paid by the plaintiff for seting aside the sale.
3. On behalf of the appellant learned counsel stressed the argument that by paying the decretal amount the plaintiff did not benefit the interest of Khakan Singh, the puisne mortgagee, and that the appellant was not, therefore, liable to contribute. In my opinion, this argument is untenable. Learned counsel referred to Sadhuprasad Bidyadkar v. Harikrishna, A. I. R. (16) 1929 Pat. 94: (115 I. C. 552) and argued that the claim upon the prior mortgage was barred by limitation on the date of payment, that the subsequent mortgagee was not liable to contribute. In this case the plaintiffs satisfied the decree on the basis of the mortgage of 1899 on 15th July 1925. The due date fixed in the bond of 1899 was one year. The period of limitation to enforce that bond therefore began to run from 18th March 1900, and the claim to enforce the mortgage of 1899 became barred on the expiry of 12 years from 18th March 1900. In July 1924 when the payment was made by the plaintiffs there was no claim subsisting upon the mortgage of 1899. Defendant 1 therefore was under no liability to pay the mortgage of 1899. The liability had been extinguished by lapse of time and the plaintiffs by making payment of the decree on the fact of the first mortgage were in no way benefitting defendant 1. Upon these facts Kulwant Sahay J. held that the plaintiffs could not enforce a charge upon the four annas purchased by Kalicharan Panda in execution of a decree upon a subsequent mortgage. Nor could they claim reimbursement as against Kalicharan Panda because there was no liability upon Kalicharan Panda to pay the decree and the payment made by the plaintiffs was not for the benefit of Kalicharan Panda or his heirs.
4. But the authority of this case is doubtful in view of the decision of the Judicial Committee in Ganeshi Lal v. Charan Singh, 57 I. A. 189: (A. I. R. (17) 1930 P. C. 183), in which two properties mortgaged together to secure one debt afterwards became vested in different owners, who purchased subject to the mortgage. One of the purchasers sued for contribution on the ground that he had paid off a mortgage which covered both properties. The Judicial Committee held that he was entitled under Section 82, Transfer of Property Act, 1882, to rateable contribution from the other purchaser, although under an earlier contract of purchase made with the mortgagor (the other purchaser not being a party) he retained part of the then agreed price for the express purpose of discharging the mortgage.
The Judicial Committee criticised the view of the Subordinate Judge that there was an equitable principle which precluded the respondents from insisting on the right of contribution. Lord Tomlin emphasised that Section 82 was the section that governed the case and that as the Act prescribed the conditions in which contribution was payable it was not proper to introduce into the matter any extrinsic principle to modify the statutory provisions.
5. The ratio of Sadhuprasad Bidyadhar v. Harikrishna, (A. I. R. (16) 1929 pat. 94 : 115 I. C. 552), is also inconsistent with an earlier Privy Council case Gopi Narain Khanna v. Bansidhar, 32 I. A. 123: (27 ALL. 825 P. C.). In that case a foreclosure decree on a prior mortgage was paid off by a subsequent mortgagee, who was a party to the decree, and by virtue of his right of subrogation thereby acquired, be wanted to be substituted in the place of the decree-holder and to continue the proceeding, but he was not permitted to do so on the ground that the decree was satisfied and the proceeding came to an end. He then brought a suit to enforce his right of subrogation and this suit was decreed by the Judicial Committee. The Judicial. Committee passed a decree so as to work out the rights of the parties on the basis of the previous mortgage decree. Of course, the question of limitation did not arise in that case, but it is quite clear from the Judicial Committee’s decision that the subsequent suit brought to enforce the right of subrogation was not treated as one based on the original mortgage. Lord Davey said (at page 133):
“And their Lordships think that on payment by Gaya Prasad (the puisne mortgagee) of the sum into Court before the expiry of the enlarged time, and acceptance of that Bum by the plaintiffs, the decree was spent and became discharged and satisfied. There was, therefore, nothing left to be done in the execution department. It is true that Gaya Prasad, having made that payment (as he had the right to do), acquired under Section 74, Transfer of Property Act all the rights and powers of the mortgagees as such. But this would not have the effect of reviving or giving vitality to a decree which by the terms of it had become discharged. Even if that were not so, the Judicial Committee fails to see how the respective right of Gaya Prasad, as owner of the first mortgage, and half owner of second mortgage and the respondent as owner of the other moiety of the second mortgage, could have been worked out without additions to the decree which the Court is executing the decree had no power to make. They are, therefore, of opinion that a new decree was required for the purpose, and Section 244, Civil P. C., was not a bar to the present suit.”
6. In this contest it is important to remember that a co-mortgagor who paid the full amount of the mortgage debt may under Section 82 not only sue for contribution but under Section 92 of the Act he may be subrogated to the rights of the mortgagee whose mortgage he redeemed. It is plain that the remedies granted by these sections ace independent and not mutually exclusive; and a co-mortgagor who pays the mortgage money hag right of contribution and acquires a charge under Sections 89 and 100 in addition to his right of subrogation under Sections 92 and 95 of the Act. In Rajkumari Debi v. Makundlal Upadhaya, 25 C. W. N. 283: (A. I. R. (8) 1921 Cal. 166), a co-mortgtagor who had paid off the entire mortgage money had sued the other mortgagor for contribution and the suit had not been brought until the expiration of more than 12 years after the due date fixed in the mortgage bond for the payment of the mortgage money. The Division Bench held that the position of a co-mortgagor redeeming a mortgage was that of an assignee of the original security and he could not get a fresh charge and the period of limitation for enforcing the charge was the same as that within which the original mortgagee could have brought his suit on his mortgage had he not been redeemed. The case wag overruled by a Full Bench in Umar Ali v. Asmat Ali, A. I. R. (18) 1931 Cal. 251 : (58 Cal. 1167 F.B.), but Rankin C. J. remarked that the decision in Rajkumari’s case (25 C. W. N. 283 : A. I. R. (8) 1921 Cal. 166) was the statute law after the amendment. Before making that remark he stated :
“It may here be observed that Section 95, T. P. Act, has by Act XX [20] of 1929 been amended in such a way that Sections 92 and 95 as they now stand make it clear that the right of the co-mortgagor redeeming is the same right as the mortgagee whose mortgage he redeems may have against the mortgagor.”
If this dictum means that the co-mortgagor has no other right but that being subrogated to the rights of the original mortgagee, I must respectfully express my dissent. For it is manifest that a person who is bound to pay only a part of the mortgage debt acquires on redemption two distinct rights. He may simply eue for reimbursement under Section 82 of the Act. He may also sue to enforce the rights of the mortgagee to follow the mortgaged properties. In Sibanand Misra v. Jagmohan Lal, 1 pat. 780 : (A. I. R. (9) 1922 Pat 499), Das J. emphasised the distinction :
“In my opinion the tight of reimbursement stands on one footing, the right to enforce a security by virtue of subrogation stands on another footing. The right to reimbursement arises on a contract, express or implied to reimburse; and the party who claims the right enforces it in his own right and not in the right of another. Consequently, the right does not arise until he has discharged the debt of another. But the right to enforce a security by virtue of Subrogation is a right which equity concedes to a person, who not being primarily liable to discharge an obligation, does discharge it, and it is a right to demand the performance of the original obligation and the application thereto of all securities held by the creditor. It is a claim which is enforced in the right of the original creditor, and only because the person discharging the obligation becomes
clothed with the rights and powers of theoriginall creditor.”
It is manifest that subrogation is rather an additional remedy than an additional right, and may exist concurrently with, and as a further security to, the right to a simple action for reimbursement. The fact that a party entitled to reimbursement and also to subrogation is entitled to two distinct remedies, seems to have been overlooked, to the confusion of both doctrines : see Pomeroy–Equity Jurisprudence–Note to Section 920.
7. This opinion is supported by a catena of authorities.
8. In Alam Ali v. Beni Charan, 58 ALL. 602 : (A I.r (23) 1936 ALL. 33 F.B.), the question formulated was :
“Where a property has been the subject of two simple mortgages and a suit has been brought for sale on the first mortgage and decreed against the second mortgagee also; and subsequently a third mortgage is taken and this mortgagee has paid the decretal amount, but has not obtained possession of the property, when, the second mortgagee brings a suit for sale and makes the third mortgagee a party, is the third mortgagee entitled to claim a right of subrogation for the amount which he paid in discharge of the decree in the earlier mortgage suit, even though the period of limitation for a fresh suit on the first mortgage would now be barred ?”
The Full Bench held that under the provisions of the new Section 92 the payment of the mortgage decree conferred upon the person who paid it off a statutory right under that section, which right was not identical with the rights of an assignee of the mortgage but was an acquisition of fresh charge, enforceable within tne period of limitation applicable to such a suit. Article 132, Limitation Act, would apply when the charge was sought to be enforced and the limitation of 12 years would run from the date when the decretal amount was paid off and the statutory right acquired.
9. In Aziz Ahmad Khan v. Chhote Lall, 50 ALL. 569 : (A. I. R. (15) 1928 ALL. 241), being the owner of a large amount of immovable property, executed a number of mortgages on different dates and in favour of different mortgagees and in several instances the same items of property were mortgaged more than once. One of these mortgagee, dated 23rd September 1899, was put in suit and a decree obtained thereon, when one CL, who was a party to the decree and was interested as a puisne mortgagee of one of the items included in the mortgage and also as a purchaser of the same, paid the whole of the decretal amount on 19th July 1916. Thereafter CL sold all the rights which he had acquired by this payment to as and others, who on 25th April 1922, brought the present suit, asking for contribution as against several properties held by the defendants. The learned Judges held that the suit was not barred by limitation. The right to contribution arose on the payment made on 19th July 1916, and under Article 132 of Schedule 1, Limitation Act, 1908, the plaintiffs had 12 years within which to sue.
10. In Brij Bhukhan v. Bhagwan Datt, 19 Luck. 70: (A.I.R. (29) 1912 Oudh 449 F.B.), the Full Bench held that the period of limitation for a suit by one of several heirs of a mortgagor or by one of the several subsequent transferees of the mortgaged ptoperty who had paid the entire mortgage decree for contribution against the other heirs or transferees in which the sale of the defendant’s share in the mortgaged property was sought, was 12 years from the date of payment and not from the date when the original mortgage money became payable.
11. In Sheosaran Singh v. Amla Co-operative Credit Society, 23 Pat. 963; A.I.R. (32) 1945 Pat. 192), the plaintiff had purchased at an execution sale 2 annas 8 pies interest in a revenue paying estate. Subsequently there was a partition and the property in suit was allotted to the contesting defendants. The sale in execution took place in 1931. The property sold had been mortgaged, the due date for the payment of the mortgage money being 18th June 1915. A suit was instituted on the basis of this mortgage and a preliminary decree obtained on 24th September 1927. This decree was made final on 15th December 1928. The mortgaged property was sold on 27th January 1936 and before a month elapsed the plaintiff paid ipto Court the decretal amount together with the statutory compensation, and had the sale set aside. On 25th February 1939, that is, within a period of three years, the plaintiff instituted the present suit and claimed to recover from the defendants one-half of the amount he had paid into Court together with interest from the date of payment. The plaintiff further claimed that, by reason of the provisions of the Transfer of Property Act, the amount due to him was liable to be charged on the moiety of the property originally mortgaged, of which the contesting defendants were now the sole owners. Upon these facts, the Division Bench held that the plaintiff was entitled to the decree he had prayed for. Shearer J. stated that the plaintiff did not primarily sue as a subrogee and the point of limitation did not really arise. He observed that when the mortgagee obtained a decree on the foot of his mortgage and the mortgaged property was sold, and a co-mortgagor paid off the amount requisite to set aside the sale and the sale was set aside the co mortgagor became an assignee in equity of the mortgage bond and if he sued as a subrogee, the suit would be barred. But he also obtained a charge by virtue of Sections 82 and 100 on the share of the other co. mortgagor and the limitation in such suit should be computed from the date when payment was made.
12. In this context reference may be made to Batey Krishna v. Parsotam Das, 71 I. A. 153 (A. I. R. (31) 1944 P. C. 85) in which the respondents, as subsequent mortgagees of the suit property, had obtained in a previous suit a decree, dated 27th May 1927, for foreclosure, subject to a declaration that the appellant had a charge on certain specified suit property in respect of same paid by him in 1917 in redemption of mortgages prior to that of the respondents. A suit was instituted by the appellant on 31st July 1931, to recover the sums so paid by enforcement of the charge by sale of the mortgaged property. The Judicial Committee held that the appellant had been subrogated to the rights of the prior mortgagees, but the rights thus obtained became merged in the decree passed in the foreclosure suit, that a charge was created in favour of the appellant by the final decree in that suit, and that for the-purposea of limitation time ran from the date of the charge thus created, and accordingly the appellant’s suit having been brought in 1931, was within the relevant 12 years period of limitation prescribed by Article 132, Limitation Act, 1908.
13. From this review of the authorities, it is, manifest that in the present case the claim of the plaintiff for contribution against defendant 1 is not barred by limitation.
14. It is necessary to emphasise that the obligation under Section 82 is not personal but the obligation is attached to the properties which are liable to contribute rateably to the debt secured by the mortgage. The owner of the properties has an option either to pay his rateable share or to allow it to be realised out of the properties. The plaintiff ought, therefore, to be granted a decree that he is entitled to claim contribution of the amounts from the respective defendants as calculated in the decree of the lower appellate Court, that in the event of the amounts with interest at 6 per cent. per annum till date of payment pot being paid within six months from the date of the decree, the plain. tiff will be entitled to recover the amounts by sale of the respective properties or ao much thereof as may be necessary to satisfy the res. pective debts.
15. Subject to this modification I should dismiss this appeal with costs.
Manohar Lall, J.
16. I have very little to add to the exhaustive judgment prepared by my learned brother. If it was not for the case of Sadhu Prasad v. Harikrishna, A. I. R. (16) 1929 Pat. 94 : (115 I. C. 552) I could not imagine
that it could be seriously argued that the period of limitation for a contribution suit could arise earlier than the date when the payment is made by the plaintiff entitling him to a decree for contribution. Sadhu Prasad Mahapatra’s case, (A. I. R. (16) 1929 Pat. 94 : 115 I. C. 552) may be distinguished on the ground that in that case the plaintiff was not a party to the decree which he had paid off, and therefore, he was not bound to pay off that decree. Kulwaut Sahay J. relied upon this fact very strongly, as he points out, that there was no liability upon defendant 1 or upon his heirs to satisfy the decree on the basis of the first mortgage of 15th July 1925, and therefore, when the plaintiff made the payment in satisfaction of that decree on that date, he was not entitled to claim contribution or to enforce any charge so far as the four annas share of defendant 1 was concerned.
17. In my opinion, the whole confusion arises in thinking that a claim for contribution is merely another name for the claim for subrogation. The two are entirely independent remedies and should not be confused. The matter has been put with his usual clarity by Das J., in Sikanand Misra’s case, l pat. 780 : (A.i.r. (9) 1922 Pat. 499). See the quotation given by my learned brother from that case in his judgment. It is true that Das J. gave a personal decree for the amount, but I do not take this to mean a decision that the amount contributed cannot be charged on the property to the extent that it was rateably liable to pay the mortgage debt which has been paid off. I would draw attention to the observations of Lord Tomlin in Ganeshi Lall v. Charan Singh, 57 I. A. 189 : (A. I. R. (17) 1930 P. C. 183) :
“It seems to their Lordships that Section 82 is the section that governs the case, and that as the Act prescribes the conditions in which contribution Is payable it is not proper to introduce into the matter an; extrinsic principle to modify the statutory provisions”
and distinguished the case of Mukammed Abbas v. Muhaynmed Hamid, 9 A. L. J. 499 : (14 I. C. 179) on the ground that in that case there passed to the party from whom the contribution was sought the benefit of the contract by which the money was to be applied, but in the case before their Lordships the defendants were no party to the contract of 1914, nor has the benefit of the contract passed to them in law or in equity.
18. Reliance was placed on behalf of the appellants on the concluding paragraph of Section 82, T. P. Act which provides that nothing in this section applies to a property liable under Section 81 the claim of the subsequent mortgagee, but as has been pointed out by Mulla in his commentary on the Transfer of Property Act, 1936 Edn. at page 498 :
“The last paragraph of the section is somewhat cryptic, but it apparently means that the right of contribution is subject ‘to’ the right of marshalling.”
The concluding prargraph of Section 82, therefore, is of no help to the appellants.
19. The only other serioua argument that could be advanced is that under the amended Transfer of Property Act, Section 92 only confers a right of subrogation on any of the persons referred to in Section 91 other than mortgagor and on any co-mortgagor who redeems the property subject to the mortgage. But in my opinion, this argument is not sound as Section 82 has not been abrogated by Section 92, and it is open to the person who redeems the property to claim either subrogation or to enforce a charge on the property to the extent that the payment has redeemed the property from the charge rateable due upon it. To such a situation the period of limitation cannot begin to run till after the payment has been made giving rise to the right of contribution. For these reasons, I agree that no question of limitation arises in this case. I would dismiss this appeal with costs subject to the modifications proposed by my learned brother.