MAGNIRAM Vs. MEHDI HOSSEIN KHAN

JUDGEMENT

(1.) The suit out of which this appeal arises was brought by the plaintiff appellant to recover a certain sum of money by way of contribution from the defendants 1 party. The main allegations upon which the suit is based are shortly these: That the predecessors in interest of the defendants 2nd party on the 15 of October 1881 mortgaged their share in four properties, Dighout Titaria, Kunda, Lakhan Dhanaman and Chhathu Dhanaman to one of the defendants 4 party for Rs. 8,000; that out of the mortgaged properties the first two were purchased on the 12 of January 1888 by the defendants 1 party, and the remaining two properties were purchased by the plaintiff at an execution sale on the 9 of July 1888; that subsequently the mortgagee, the defendant 4 party, having obtained a decree on his mortgage on the 26 of April 1892, caused the sale of the last two properties on the 23 of May 1893, and the defendants 1 party purchased the same for Rs. 21,000, and this sale had the effect of satisfying the entire Mortgage debt due to the decree-holder; that as the sum of Rs. 21,000 realised by the" sale of the plaintiff's property went to satisfy the mortgage on all the four properties, it should be held that the mortgage has been satisfied with the plaintiff's money, and the plaintiff is accordingly entitled to contribution from the defendants 1 party, the amount of such contribution being the excess of the amount so paid with one which was the value of his property, over his share of the liability for the mortgage debt; that he sum of Rs. 21,000 has therefore to be divided in proportion to the vales of the two properties purchased by the plaintiff and the two purchased by the same proportion will give for the plaintiff's must be taken to have paid Rs. 15,000 and odd in excess of his share of the mortgage debt which he was really liable to pay; and accordingly the plaintiff brings this suit to recover that sum together with interest amounting in all to Rs. 24,000.

(2.) The defence of the defendant 1 party was, so far as it is necessary to consider it for the purposes of this appeal, to the effect that this suit was not maintainable, as the mortgage decree in execution of which the sale of the plaintiff's mouzahs took place and to which the plaintiff was a party, expressly directed the sale of those mouzahs in the first instance; and that the sum of Rs. 21,000 paid by the defendants 1 party Wais far in excess of the real value of the property purchased by them, and they paid that amount with the object of having the mortgage debt completely satisfied so that the property which they had purchased might not be brought to sale.

(3.) The Court below upon these pleadings framed certain issues of which the third is the only one of importance for the purposes of this appeal, and which was in these terms, namely: Whether the plaintiff is entitled to any and what contribution from defendants 1st party?