VISHNU BALKRISHNA NAIK Vs. SHANKAREPPA GURLINGAPPA WAGARALI

JUDGEMENT

(1.) THIS is an appeal against an order made by the Assistant Judge of Belgaum in an appeal against an order passed by the Subordinate Judge of Hukeri on an application made in execution proceedings. The material facts are these :

(2.) THE plaintiff in a suit filed in 1924 obtained a money decree against fourteen judgment-debtors. He got the five lands now sought to be sold and other lands belonging to the defendants attached before judgment on December 17, 1924. Before this, in 1922, the plaintiff, who had acquired an interest in the suit lands, had filed a suit against the prior mortgagee, one Kalkundri, and there was a consent decree under which he was allowed to redeem that mortgage on payment of Rs. 1,290, and the lands were taken by him in his possession. ;He thus stood in the position of the mortgagee. On May 16, 1925, the defendants mortgaged the lands to one Gurlingappa, the father of applicant No.1, for Rs. 3,000. THEy took Rs. 1,710 from Gurlingappa and there was a stipulation that Gurlingappa was to pay off the plaintiff's mortgage by paying him Rs. 1,290. Gurlingappa deposited the amount in Court with an application under Section 83 of the Transfer of Property Act, 1882, and the plaintiff accepted the amount in full satisfaction of his mortgage debt and delivered possession of the lands to Gurlingappa. THE plaintiff filed darkhasts in execution of his decree in 1928, 1930 and 1932 before the present Darkhast No.253 of 1936 was filed. THE darkhast of 1932 was transferred to the Court at Hukeri and was given number 13 of 1935. In that darkhast certain lands were sold and an amount of Rs. 559 was realised, and the darkhast was disposed of on June 10, 1936, In the present darkhast the decree holder contended that as the lands in question were attached before judgment no fresh attachment was necessary. THE papers were accordingly sent to the Collector for sale of the lands. On August 10, 1936, Gurlingappa's son and grandson (Gurlingappa having died meanwhile) made an application to the Court contending that the attachment before judgment had ceased by the operation of O. XXI, Rule 57, of the Civil Procedure Code, 1908, as the darkhast of 1935 had been dismissed owing to a default on the part of the decree-holder, and that if the lands were to be sold, they should be sold subject to the mortgage of Rs. 3,000, or at least subject to the charge of Rs. 1,290 paid by Gurlingappa to satisfy the decree-holder's prior mortgage. THE decree-holder's reply was that the mortgage of 1925 was void as it came into existence during the attachment and that the attachment had not come to an end as there had been no default on his part when the darkhast of 1935 was disposed of.

(3.) AS to the other propositions relied on by Mr. Gumaste he has relied on Hira Singh v. Jai Singh [1937] All. 880 Lakshmi Amma v. Sankara Narayana Menon (1935) I.L.R. 59 Mad. 359, F.B., and Rai Bahadur Bansidhar Dhandhania. v. Kairoo Mandar (1938) I.L.R. 17 Pat. 666 In the first of these cases it has been held that where a person himself redeems a mortgage, that is to say, pays the mortgage money out of his own pocket and not merely discharges a contractual liability to make the payment, he is entitled to the right of subrogation under the first paragraph of Section 92 if he is one of the persons, other than the mortgagor, enumerated in Section 91, but that where the person does not himself redeem the mortgage, that is to say, does not himself pay the money out of his own pocket in excess of his contractual liability but advances money to a mortgagor and the money is utilized for payment of a prior mortgage, whether the money is actually paid through the hands of the mortgagor or is left for such payment in the hands of the person advancing the money and it is then paid to the prior, mortgagee through the hands of that person, the latter acquires the right of subrogation under the third paragraph of Section 92, only if the mortgagor has by a registered instrument agreed that he shall be so subrogated. Mr. Gumaste has contended that in the present case it cannot be held that the money utilised for the payment of the prior mortgage was advanced by Gurlingappa. He has referred to the terms of the mortgage bond, exhibit 54, in which the mortgagor said that the amount of Rs. 1,290 was deposited with Gurlingappa for paying the prior mortgagee Vishnu Balkrishna. His contention, therefore, is that the applicants cannot come either under the first paragraph or the third paragraph of Section 92.