RAMESWAR PD MISSIR Vs. RAMNATH KHEMKA

JUDGEMENT

(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.