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Calcutta High Court
Roghu Nath Pershad And Anr. vs Harlal Sadhu And Ors. on 4 March, 1891
Equivalent citations: (1891) ILR 18 Cal 320
Author: T A Ali
Bench: Tottenham, A Ali


JUDGMENT

Tottenham and Ameer Ali, JJ.

1. This was a suit to recover money due upon a mortgage by the sale of the mortgaged properties, which were the five properties originally mortgaged; and it appears that some have since passed out of the hands of the original mortgagor.

2. The present owners were made parties to the suit. The present appeal has been preferred by one of those parties, the original defendant No. 12; and the point which we have to decide is whether by virtue of Section 82 of the Transfer of Property Act this defendant is entitled to require the plaintiff, mortgagee, to apportion his claim amongst the various properties mortgaged, and to accept from the appellant his rateable share only.

3. The learned Pleader for the Appellant has not been able to put before us any authority for his construction of Section 82 of the Transfer of Property Act, nor are we aware of any such authority.

4. We think the position is not tenable, but that the lower Courts are quite right in the view they have taken of Section 82, when the District Judge says, “that the intention of the law is not that the lien of the mortgagee should be split, but simply to determine the liabilities of the purchasers inter se.” Section 82 upon the face of it refers to contribution as between the various persons who may be liable with respect to the same debt. It seems to us that the lower Courts were quite right in allowing the plaintiff a decree for the whole sum claimed, making all the mortgaged properties liable for the satisfaction of that decree, and leaving it to any one of the defendants who might have to pay up more than his rateable share to recover with reference to Section 82 of the Transfer of Property Act from his co-debtors.

5. This appeal is dismissed with costs.


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