BHAGWATI PRASAD Vs. SHAFAAT MUHAMMAD CHAUDHRI; KULSUM BIBI

JUDGEMENT

(1.) THIS appeal is connected with First Appeal No. 321 of 1917, which we have just heard and decided. It is an appeal by the defendants Nos. 1 and 2, and relates to the three villtges Dharaoli, Kundrnpur and Hanumanpur. The point taken before us is a very brief one. The present appellants are the representatives of Sarja Prasad, who is the mortgagee under the three mortgages of the 1st of August 1579, the 14th of December 1883 and the 9th of January l885. It is an admitted fact that under the decrees obtained under two prior mortgages these three villages, Dharaoli, Kundrnpur and Hanumanpur, were sold and purchased by the decree holder. It is for this reason, it is urged, that these three villages cannot be in any way liable for contribution towards the sum paid by the plaintiff to save his property from sale. The learned Subordinate Judge has calculated the value of these three villages in a certain manner to which exception is taken, but which we need not now consider. He found that the values were greater than the sums paid by the decree holder when he purchased in exceution of the decrees obtained on the prior mortgages. As the decree-holder was also the decree-holder under the third mortgage, he has held that the three villages are pro portionately liable with a fourth village Rupgarh, and in calculating the proportionate liability be has deducted from their actual values the sums paid by the decree-holder when he purchased them at auction sale. It is urged, and we think with considerable force, that whatever may have been the price that the decree-holder paid for them at the auction sale the properties, having once been sold to partly satisfy the decree tinder a prior mortgage, can no longer be held liable for any portion of the puisne mortgage debt. We think that the principle which underlies the decisions in Hari Raj Singh v. Ahmad-ud-din Khan 19 A. 515 : A.W.N. (1897) 163 : 9 Ind. Dec. (N.S.) 353 and Bohra Thakur Das v. Oollector of Aligarh 3 A.L.J. 439 : A.W.N. (1906) 150 : 28 A. 593 governs the present case. As was laid down in the former of these two decisions, the unsold portion of the mortgaged property affords the fund out of which the claims of all the persons whose villages had contributed more than their common shara of liability must be satisfied. In the latter of these two cases it was laid down that where two properties are mortgaged under a second mortgage and one of them is swallowed up by a first mortgage, the whole burden of the second mortgage falls entirely on the remaining property, the owner of which has no right to contribution against the owner of the property sold to satisfy the first mortgage. The fact that the auction-purchaserat the sale in exceution of the decrees obtained on the prior mortgages is a decree-holder and the same person who is the owner of the third mortgage and the third decree and the fact that he obtained the property at a low price seem to us not to affect the case in any way. These three villages were liable for all three of the mortgages. They were sold under the first two decrees with several other properties and the decrees remain still unsatisfied. If the third mortgage a had been a separate person, he could not possibly have proceeded Against this property for the satisfaction of his decree. It is quite clear that so much of the security for the third mortgage had vanished and had been swallowed up in satisfying partly the claims of the first two mortgages. There remains nothing that could be sold under the third decree and, therefore, nothing in these three villages which could possibly contribute towards the plaintiff s claim. We think that the decision of the Court below on this point is wrong and we, therefore, allow this appeal; so far as that decree directs that any portion of the sum decreed to the plaintiff shall be recoverable by the sale of these three villages, it is set aside. The suit as against the present appellants will, therefore, stand dismissed. They will have their costs in both Courts.