(BABU) SRIPATI SAMANTA Vs. LALJI SAHU

JUDGEMENT

(1.) THIS is a second appeal from the decision of the Additional Subordinate Judge of Hazaribagh confirming the decision of the Munsif of Giridih. The facts as found by the lower appellate Court are as follows: On 3 September 1910 Gurucharan Sahu and Lalji Sahu, on behalf of their joint family, took a loan from Babu Sripati Samanta of Giridih for the necessities of the joint family and for family benefit on the security of certain joint family property. On 20 June 1917, Gurucbaran Sahu made a payment of Rs. 200 towards interest, the fact of which was endorsed by Gurcharan over his signature on the mortgage bond. On 26 January 1923 Gurcharan made another payment of Rs. 10 towards interest which was similarly endorsed by him on the bond. When this second payment was made, the family had left Giridih; and the Courts have found that by that time the family had ceased to be joint, though it does not appear that Sripati Samanta was aware of that fact. If it had not been for the payment of interest on 26 January 1923 by Gurcharan Sahu, the suit would have been barred by limitation. The Courts below held that the payment by Gurcharan Sahu affected only himself and his son and the defendant who was a subsequent mortgagee of the house in suit. The mortgagee Babu Sripati Samanta has appealed from that decision. Mr. G.C. Mukherji on behalf of the appellant argues that this question is concluded by the decision of a Division Bench of this Court in Badri Das V/s. Pasupati Banarji 1933 Pat 1. It was there held that payment made by one of the debtors would save limitation for a suit to realise the security, although in the hand of persons other than those making the payment. It was pointed out by Agarwala, J., that in the case of a debt secured by mortgage, the liability is indivisible; and no splitting up of the security avails to split up the liability unless the mortgagee consents to it: the payment of interest by one of the mortgagors will keep the mortgage alive so that the mortgagee would be entitled to enforce it against all or any part of the mortgaged property.

(2.) MR S.S. Bose on behalf of the respondents argues that the mortgagors should be regarded as joint contractors within the meaning of Sub-section (2) Section 21, Lim. Act and that the payment made by one could not affect any other of them. MR. Bose argues as if the case were one of first impression; but this point is concluded by the authority of the decision upon which MR. Mukherji relies. It is expressly pointed out there that where the debt is a single debt and the liability is one and indivisible the case falls within Section 20 and is not taken out of its operation by Section 21(2) of the Act, so that any person interested in the equity of redemption may by making payment in the manner provided by Section 20, Lim. Act keep the mortgage alive in such a manner that the whole of the mortgaged property remains liable for the debt. The provisions of Sub-section (2) Section 21, might be applied if the suit were based on personal covenants to repay; but I take it that the distinction between joint contractors and the body of persons interested in the equity of redemption is this: that whereas with joint contractors there are a number of separate single debts: for the persons interested in the equity of redemption, there is one single indivisible debt and a single indivisible security. The appeal is allowed and the plaintiff's suit will be decreed with costs throughout.