DALIP RAI Vs. BIRNAIK RAI

JUDGEMENT

(1.) THE appellant is a puisne mortgagee of the property in suit and there were two prior incumbrances cm the property. By the mortgage-deed in the appellant's favour the appellant undertook to pay off the two prior mortgages and money sufficient for that purpose was left with him. THE first mortgagee brought a suit on his mortgage and obtained a decree. THE appellant then paid off the decretal amount on the first mortgage. He did not, however, pay off the second mortgage. THE second mortgagee then sued to recover the amount of his mortgage. In this suit the defendant-appellant pleaded that the plaintiff, was bound to repay the defendant the amount paid by him in respect of the first mortgage. THE Court of first instance accepted the plea. THE lower appellate Court repelled it. THE defendant comes hero in second appeal. THE question for decision is, does the payment made by the defendant-appellant of the amount of the first mortgage endure to his benefit, that is, can he claim that the second mortgagee shall pay off that amount before bringing the property to sale? I am referred to the cases of Shynam Lal V/s. Bashir-ud-Din 3 A.L.P. 630; Vanmikalinga Mudali V/s. Chidambara Chetty 29 M. 37; Frecman V/s. hiring 2 Ch. D. 335 (1899); Gokuldas Gopaldas V/s. Puranmal Premsukh Das 10 C. 1035 : I.T.I.A. 126. On behalf of the respondent it is pointed out that there is one fact in this case which distinguishes it from the facts of the cases roiled on by the appellant and that fact is that the appellant in this case has undertaken to pay off the prior incumbrances. It is also pointed out that the right which the appellant claims of subrogation is one based on equity. THE present case is not one in which the appellant has had out of his own pocket to pay off the prior mortgage in order to safeguard his own mortgage. In fact, the appellant in this case seeks to take advantage of his own breach of faith to defeat the claim of the second mortgagee whom he had contracted to pay off. THE rulings reported in Bajinath V/s. Murlidhar A.W.N. (1907) 85; Surfiram Marwari v. Barhamdas Persad 2 C.L.J.R. 288; Narayana Rau 17 M. 62 are sufficient authority for my holding that in a case like the present the appellant has no equity in his favour. THE appeal is dismissed with costs including fees on the higher scale.