(1.) This appeal came before this Bench on 28 November 1939 when by an order of reference dated 5 December 1939 two questions were referred to the Full Bench for decision, Tika Sao V/s. Hari Lal Reported in A.I.R. 1940 Pat. 385 namely whether a subsequent mortgagee who pays up and redeems the earlier mortgages as part of the covenant in his mortgage is entitled to claim subrogation so as to entitle him to enforce the rights of the earlier mortgagees as a plaintiff in an action and secondly whether the provisions of Sec. 92 of the amended T.P. Act, 1882, are retrospective. The Full Bench have now unanimously decided the first question in the affirmative and by a majority the second question also in the affirmative. The hearing of the appeal was accordingly resumed by this Bench on 4 September 1940. It is unnecessary to set out once again the various mortgage bonds which have to be considered in deciding the matter now in controversy. Reference may be made conveniently to the order of reference where all the mortgage bonds have been sufficiently set out. It is enough to state that the present suit is a suit by the plaintiffs to enforce the mortgage bond dated 25th April 1927 by which the four earlier mortgage bonds, two of the year 1924 and the other two of the year 1925 (hereinafter referred to as the earlier bonds) executed by the mortgagors who are defendants 1 and 2 in the action were paid off as part of the covenant. The mortgage bond in suit was executed in favour of the plaintiffs and in favour of defendants 3 to 6. The appellants who are defendants 8, 10, 11, 16 and 17 are mortgagees subsequent to the earlier bonds redeemed as aforesaid and also held a mortgage subsequent to the mortgage bond in suit giving rise to a, number of complications which will be indicated hereafter.
(2.) It having been decided by the Full Bench that the provisions of Section 92 are retrospective the appellants contended in the first place that upon a true construction of the mortgage bond in suit no lien was sought to be given on the properties other than those expressly stated in the mortgage bond in suit, and therefore the plaintiffs cannot take any advantage from the doctrine of subrogation beyond this that they will have priority only on those properties which are common to the mortgage bond in suit and the earlier bonds.
(3.) The appellants relied upon the words of the bond in suit printed at p. 18 (Part III) that as security for the amount of loan on the bond of 25 April 1927 the mortgagors have hypothecated the shares in the villages specified therein "by keeping alive the effect of the previous mortgage lien covered by the bonds Nos. 1 to 4 aforesaid which have been satisfied from this amount of debt, taken back and made over to the said creditors." The words in the vernacular corresponding to "by keeping alive" are "babahal mokaddam," that is, "and on keeping alive." It seems to me that the contention of the appellants is not well founded when they argue that these words should be interpreted to mean that the parties intended that the previous security should be split up by giving a peculiar right of subrogation to the plaintiffs. The right of subrogation, as has been decided by the Full Bench, gives full right to enforce the previous mortgage bonds which have been redeemed and kept alive and therefore the plaintiffs, in my opinion, have full right to enforce the earlier bonds even against property not covered by the bond in suit.