JAGANNATH Vs. RAHAKISAN

JUDGEMENT

(1.) 1. The material facts connected with this revision application are briefly as follows : On 15th March 1926, the plaintiff Radhakisan Birbhan - a prior mortgagee - obtained on his mortgage a - preliminary decree for foreclosure against-the mortgagor, Gangaram Krishnaji, defendant 1, defendant 5, Jagannath Mangiram - a subsequent mortgagee - and one other person viz., defendant 6. These three defendants were required to pay the amount of Rs. 1,711-100 due on account of the mortgage debt and costs of the suit within six months from the date of the decree. The said amount being not paid within the prescribed period, the plaintiff Radhakisan presented an application to the lower Court for making the decree final. It seems that some time after the presentation of this application, defendant 5, Jagannath, satisfied the decree, and then applied for a final decree being made in his favour in the proceedings initiated by the plaintiff's application. His application was refused by the lower Court. It is this order dismissing defendant 5's application for making a final decree in his favour which is now sought to be revised in this Court. It appears from defendant 5's written statement, dated 13th January 1926 filed in the case, prior to the passing of the preliminary decree for foreclosure, that out of Rs. 2,500, the principle amount of the mortgage-deed dated 26th May 1924, executed by defendant 1, in favour of defendant 5, the latter undertook to pay Rs. 1,000 to the plaintiff Radhakisan in satisfaction of his prior mortgage, but that the said amount was not paid by defendant 5 to the prior mortgagee, prior to the passing of the preliminary decree for foreclosure in the present case.

(2.) THE only question raised in this case is whether defendant 5 - a puisne mortgagee is entitled to subrogation and to have a final decree for foreclosure passed in his favour in the suit instituted by the prior mortgagee, on payment of the latter's mortgage-debt by the former. It is urged on behalf of the applicant Jagannath, that as he has paid off the whole debt due under the prior mortgage of the plaintiff Radhakisan, he is entitled, under Section 74, T.P. Act, to all the rights and powers of the prior mortgagee, including the latter's right to have a final decree made in his favour, and reliance is placed on the decision in Shankar Rao v. Ganpat Rao A.I.R. 1925 Nag. 15, while, on the other hand, it is maintained on behalf of the non-applicants 2 and 6, that the doctrine of subrogation cannot be availed of by the applicant under the circumstances of the case, especially in view of the fact that the major part of the payment made by the applicant consisted of Rs. 1,000, which he had undertaken to pay to the prior mortgagee on account of the mortgagor, and the amount of interest thereon, from 26th May 1924, the date of the applicant's mortgage, to the date of payment. It seems to me that there is much force in the latter contention and that it must consequently prevail.

(3.) THE applicant Jagannath cannot, therefore, claim to have himself paid off the whole decretal debt due under the prior mortgage when he has paid only a smaller part of the said debt. It is not, therefore, open to him to avail himself of the principle of subrogation underlying Section 74, T.P. Act, and to insist upon a final decree for foreclosure, in default of payment of Rs. 1,711-10-0, being passed in his favour, when the major part of the said amount has been paid by the mortgagor: vide Har Shyam Chowdhary v. Shyamlal Sahu [1915] 43 Cal. 69, Baijanath v. Murlidhar [1907] 4 A.L.J. 349, Gulzarilal v. Aziz Fatima [1919] 41 All. 372, and Tufail Fatma v. Bitola [1904] 27 All. 400. It has been affirmed in Surjiram Marwari v. Barhamdeo Prasad [1905] 2 C.L.J. 288, that the doctrine of subrogation has no application when a person simply performs his own obligation, and pays off a charge which he has undertaken to satisfy. The fact of the major part of the payment being made by the mortgagor differentiates the present case from the aforementioned unreported case of this Court, of Shankar Rao v. Ganpat Rao A.I.R. 1925 Nag. 15, in which the whole decretal amount due under the prior mortgage was paid off by the puisne mortgagee from his own pocket. I am, therefore, clearly of opinion, in view of the foregoing reasons, that full payment of the decretal debt due to the prior mortgagee having not been made by the puisne mortgagee the question of subrogation and the latter's stepping in the shoes of the former cannot possibly arise. It is consequently unnecessary to enter into the question whether the lower Court should have exercised its discretion in the applicant's favour by the transposition of the applicant's name under Order 1, Rule 10, Civil P.C. Nor would it be necessary to deal with the question whether the fact of the preliminary decree in question being drawn up in form No. 3, and not in form No. 6 prescribed in Appendix D to Schedule 1, Civil P.C., would present any difficulty in passing a final decree in favour of the pusine mortgagee paying off a prior mortgage.