BIDHU BHUSHAN PAL CHOWDHURY Vs. UMESH CHANDRA BANERJEE

JUDGEMENT

(1.) This is an appeal by defendant No. 11 against the judgment and decree of the Subordinate Judge, First Court, Howrah, by which the learned Judge decreed the suit brought by the plaintiff. The facts are these: The appellant, along with the other defendants Nos. 1 to 13 and the father of defendants Nos. 14 and 15, were the owners of two items of properties with which we are concerned. One was 2 bighas 5 cottas in area and the other was only 5 cottas in area. The mortgage was dated the 14 May, 1910, and the principal amount of the loan was Rs. 7,000. A preliminary decree was obtained by the mortgagee named Khirod Chandra Ghose on the 20 July, 1917, on his mortgage, by which decree the amount due to the mortgagee was found to be Rs. 16,000 odd. An appeal was taken by the mortgagor against the decree which was dismissed by this Court oh the 30 April, 1920. By an indenture dated the 3 March, 1921, the plaintiff purchased from all the mortgagors the bigger plot, the area of which was 2 bighas 5 cottas. In that Indenture it was stated that the property was subject to an incumbrance of Rs. 16,300 by a deed of charge or mortgage in favour of Khirod Chandra and the property was sold subject to that incumbrance. The mortgagors received Rs. 11,751 as the consideration of the sale of their interest. There was a stipulation that the sellers would keep the purchaser harmless and indemnify him against any charge save and except the charge in favour of Khirod. There was the usual covenant for title and assurance that apart from the incumbrance of Khirod, subject to which the property was sold, there was no other charge or incumbrance on the property. After the sale aforesaid, the decree in favour of the mortgagee was amended by this Court by an order dated the 22nd August, 1921, by which it was decreed that the mortgagee would be entitled to a sum of Rs. 18,000 odd with interest thereon at the rate of six per cent per annum from the 20 January, 1918, the date of redemption fixed under the decree. The result was that at the, date of the sale dues of the mortgagee amounted to something like Rs. 21,000. The mortgagee was paid by the purchaser who is the plaintiff in the case out of which this appeal has arisen, a sum of Rs. 23,000 odd on the 3 July, 1922, in order to satisfy the mortgage decree and he got a deed of release from the mortgagee. The present suit was brought on the 22nd December, 1925, by which the plaintiff asked for the recovery from the defendants the difference between the sum he paid to the mortgagee in order to satisfy the mortgage decree and the sum of Rs. 16,000 odd that was mentioned in the Indenture of sale of the 3 March, 1921, as the amount of the incumbrance on the property. The learned Subordinate Judge made a partial decree in favour of the plaintiff. He held that there was an express covenant in the Indenture by which the plaintiff purchased the property to indemnify the plaintiff with regard to any sum that would be paid in satisfaction of the mortgage over and above the sum of Rs. 16,000 odd that was mentioned in the document as the amount of the charge. But he held that the plaintiff was entitled only to the money which would have been payable to the mortgagee on the date of the purchase minus Rs. 16,000 odd. He held that the plaintiff having delayed in paying off the mortgagee and thereby the amount having swelled by the running of interest, he cannot get the excess amount from the vendors, He, therefore, made a decree for Rs. 6,958 odd with costs as against defendants Nos. 1 to 11 and 14 and 13. The suit was dismissed against defendants Nos. 12 and 13, who, the learned Subordinate Judge found, had no interest in the property. The defendant No. 11 as aforesaid appeals primarily because defendant No. 11 is a solvent person against whom the decree is likely to be executed and the other defendants have been made respondents in the appeal.

(2.) Two points have been raised on behalf of the appellant by his Advocate. The first is that the learned Subordinate Judge is in error in holding that there was an express covenant indemnifying the purchaser against any payment in excess of Rs. 16,300 with regard to the incumbrance in favour of Khirod Chandra, subject to which he purchased the property, as stated in the Indenture, There being no such express covenant, the Subordinate Judge ought not to have made a decree in favour of the plaintiff The second point urged was that the learned Subordinate Judge is wrong in holding that the suit is not barred by limitation. The Subordinate Judge held that Art. 116, read with Art. 83, of the Limitation Act is applicable to this case and as the payment was made on the 23 July, 1922, the present suit has been brought within the period of limitation. It is contended that as there was no contract to indemnify, Art. 83 has no application. Besides as there is no contract in writing and registered, on which the plaintiff can base his case, Art. 116 has no application.

(3.) The learned Advocate for the appellant concedes that the defendants were bound to pay a rateable amount of the mortgage money which was a charge on the 5 cottas plot, because the mortgage on that piece of land has been paid off by the plaintiff. But he says that the present suit is not for recovering any such amount which could only be ascertained on evidence as to the respective value of the properties on the 3 July, 1922, for a rateable distribution. Besides he contends that any claim for such contribution was barred by limitation at the date of the suit.