Authored By : B.K. Mukherjea, William McCormick Sharpe

B.K. Mukherjea, J.

1. This is an appeal under Clause 15, Letters Patent and isdirected against a judgment of Jack J., dated 1st March 1937. passed in appealfrom Appellate Decree No. 247 of 1933. The appellants before us are theplaintiffs in a suit for recovery of a sum of Rs. 960 on enforcement of theirrights of subrogation for having redeemed a prior mortgage existing upon theproperties described in the schedule to the plaint. The material facts are notin controversy and may be briefly narrated as follows: In July 1901, there wasa mortgage executed by one Kazamuddin, predecessor of defendants 1 to 37 infavour of the predecessors of defendants 38 to 42, in respect of several itemsof property including the properties in suit, to secure an advance receivedfrom the mortgagees. On 17th February 1914, the mortgagees instituted a suit inthe Court of the Munsif at Lakhipur, in the district of Noakhali to enforcetheir mortgage, and this was registered as Title suit No. 295 of 1914. Apreliminary decree for sale was made in that suit on 20th January 1915, whichwas made final on 27th May 1918. After certain proceedings in execution, whichare not necessary to narrate for our present purpose, the decree was put intoexecution in Title Execution Case No. 194 of 1929, and the mortgaged propertieswere put up to sale on 16th February 1930. Some time in 1918, when thismortgage suit was still pending, the mortgagor created a second mortgage inrespect of the same properties in favour of one Peari Mohan Saha, and thelatter assigned his rights as a mortgagee to the present plaintiffs. Theplaintiffs who thus became endowed with the rights of a second mortgageedeposited in Court, the full amount due to the decree-holder under the decreein Mortgage Suit No. 295 of 1914 on 7th March 1930, which was before the datefixed for confirmation of the sale. On 2nd May 1930, they brought the presentsuit for recovery of the sum of money paid by them to redeem the firstmortgagee to whose rights and powers they claimed to be subrogated. The suitwas contested by defendants 11 and 14 only, and their contentions, insubstance, were, that the plaintiffs were not entitled to any right bysubrogation, and even if they had acquired any right, the suit was barred bylimitation as being instituted more than twelve years after the due date ofpayment in the first mortgage bond.

2. The trial Court overruled both the contentions of thedefendant and decreed the plaintiffs suit. There was an appeal taken againstthis decision to the Court of the District Judge of Noakhali, and the learnedSubordinate Judge who heard the appeal reversed the judgment of the trial Courtand dismissed the plaintiffs claim as being time-barred. There was a secondappeal taken by the plaintiffs to this Court which was heard by Jack J. sittingsingly. The learned Judge held that the plaintiffs had the rights ofsubrogation but were bound to enforce those rights within the same period oflimitation that was available to the first mortgagee to sue upon his mortgage andas that period had long expired, the suit, so far as it claimed a decree forsale of the mortgaged properties, was barred by limitation. The learned Judgeheld, however, that the plaintiffs were entitled to a personal decree againstthe mortgagors for the sum of Rs. 960 paid by them to satisfy the decree on thefirst mortgage, and the decree of the lower appellate Court was modifiedaccordingly. It is against this decision of Jack J. that the present appeal hadbeen filed by the plaintiffs under Clause 15, Letters Patent. There has been noappeal by the defendants against that part of the judgment of Jack J. whichgave the plaintiffs a personal decree against the mortgagors. The two questionswhich require determination in this appeal are: (1) Whether Section 92, T.P.Act is retrospective in its operation and the plaintiffs can claim the rightsof subrogation under that section or under Section 74 of the old Transfer ofProperty Act (2) Whether the present suit as a suit to enforce the rights ofsubrogation of the plaintiffs is within time

3. The first question really does not present anydifficulty. It is conceded by the learned advocate for the respondents thateven if Section 92 of the present Transfer of Property Act is not attracted tothe facts of this case, the plaintiffs could claim subrogation under Section 74of the old Act. As, however, the question has been argued in full by thelearned advocate appearing on behalf of the appellants, we desire to place onrecord our views upon it. It will be noted that the plaintiffs paid the amountdue to the first mortgagee under his mortgage decree on 17th March 1930,whereas Section 92, T.P. Act, as it stands at present was introduced by theamending Act 20 of 1929 which came into force on 1st April 1930. The questionis whether the plaintiffs can claim the benefit of Section 92 of the presentAct. The judicial opinion on this point is not altogether uniform. TheAllahabad High Court in the Full Bench case in Totaram v. Ram Lall: AIR1932All489 , has held that Sections 92 and 101, T.P.Act, as introduced by Act 20 of 1929 have retrospective operation. Reliance hasbeen placed by the learned Judges upon Section 63 of the amending Act whichlays down that:

Nothing (contained) in any of the following provisions,namely, Sections 3, 4, 9, 10, 15, 18, 19, 27, 30, Clause (e) of Section 31,Sections 32, 33, 34, 35, 46, 52, 55, 57, 58, 59, 61 and 62 shall be deemed inany way to affect: (a) the terms or incidents of any transfer of property made oreffected before the first day of April, 1930; (b). . . . . . . .; (c) anyright, title, obligation or liability already acquired or incurred before suchdate, or (d) any remedy or proceeding in respect of such right, title,obligation or liability; and nothing in any other provisions of this Act shallrender invalid or in any way affect anything already done before the first dayof April 1930, in any proceeding pending in a Court on that date; and any suchremedy and any such proceeding as is herein referred to may be enforced,instituted or continued, as the case may be, as if this Act had not beenpassed.

4. Now, Sections 47 and 51 of the amending Act whichintroduced Sections 92 and 101 of the present Transfer of Property Act are notmentioned in the first part of Section 63. The mere fact that certain sectionsof the amended Act are expressly made non-retrospective does not necessarilyshow that the intention of the Legislature was to make the other sectionsretrospective in their operation. But there is this further provision inSection 63, namely, that the other sections would not be applicable whenanything had been done before the first day of April 1930, in any proceedingpending in Court on that date. The implication, therefore, is that if there wasany pending proceeding on 1st April 1930, the retrospective operation of thesesections would not be excluded. This decision was followed by a Bench of fiveJudges in the same High Court in Hira Singh v. Jai Singh :AIR1937All588 . The Patna High Court originally took a different view in JagdeoSahu v. Mahabir Prosad , but this was overruled by the laterFull Bench decision in Tika Sao v. Harilall . The Bombay HighCourt accepted the view taken by the Allahabad High Court in Totaram v. RamLall : AIR1932All489 , vide Subraya Kuppa v. Timmanna Subrayaand Vishnu Balkrishna v. Shankareppa Gurlingappa A.I.R. 1942Bom. 227. The same view has been taken in this Court by Sen J. in Padma LochanRoy v. Sheik Azimaddin 42 C.W.N. 1106. We think that this view is right andshould be accepted. A contrary view has indeed been expressed by the MadrasHigh Court in Lakshmiamma v. Sankara Narayana A.I.R. 1936 Mad. 171, [LQ/MadHC/1935/345] but withrespect to the learned Judges who decided it, we find it difficult to accepttheir suggestion that the provision of Section 63 of the amending Act wasinserted ex majore cautela only for the purpose of removing a doubt. If it isonly to emphasise the fact that all changes in substantive law areretrospective that Section 63 was introduced, there is absolutely no reason whysome sections only should be mentioned there and the rest omitted. If again thesections that are omitted are held to be not retrospective, there was nonecessity to insert any special provision to save pending actions. In ouropinion, Section 92 is retrospective in its operation, and as in the casebefore us, there was no proceeding pending on 1st April 1930, the provisions ofthat section could be invoked by the plaintiffs.

5. But even if Section 92 has no application to the facts ofthis case, we are of opinion that the plaintiffs are entitled to claimsubrogation under Section 74 of the old Act. Though the word"subrogation" did not occur in the old Act, it is well known thatSections 74 and 75 of the Act were based upon the principle of subrogation.Taken literally Section 74 laid down a rather narrow rule and restricted therights of subrogation of a puisne mortgagee to redeem a prior mortgage withindefinite limits. The section was confined to payment by a subsequent mortgageeonly to the next prior mortgagee, and as the payer had to obtain a receipt fromthe payee, it is difficult to say on the language of the section whether it didapply to a case where the payment was made in Court after a decree was passed.But their Lordships of the Judicial Committee gave the section a wider and moreliberal interpretation and it was expressly held in Gopi Narayan Khanna v.Bansidhar (05) 27 All. 325, that Section 74 was applicable when a puisneencumbrancer paid the dues of the first mortgagee after the latter had obtaineda decree upon his mortgage. On the strength of this decision, we are bound tohold that the plaintiffs would be entitled to claim the rights of subrogationeven if Section 74 of the old Act be held to be applicable.

6. The next and the more important question for ourconsideration is whether the present suit which is a suit to enforce the rightsof subrogation is within time. Admittedly, a period of twelve years has longexpired from the due date of the first mortgage bond. The first mortgagees hadinstituted their suit just before the expiry of twelve years, and that was inthe year 1914. The present suit has been brought in the year 1930 even morethan twelve years after the preliminary decree was obtained. The questionraised is, what should be the starting point of limitation in a suit of thischaracter. The point is not free from difficulty, and so far as this Court isconcerned, it is not covered by any previous decision. A puisne encumbrancerwhen he pays off an earlier mortgage is subrogated in law to the rights of thelatter. He has the "same rights as the mortgagee whose mortgage he redeemsmay have against the mortgagor or any other mortgagee" (Section 92, T.P.Act). The principle underlying subrogation is that the mortgage or charge whichis redeemed by payment is not extinguished but is kept alive and the benefit ofit is transferred to the subrogee. It cannot be said, therefore, that by thepayment of the dues on an earlier mortgage a new charge is created and broughtinto existence by operation of law in favour of the subsequent mortgagee whopays the money.

7. We are not unmindful of the case in Shiblal v. Munnilal, which was decided under Section 74 of the old Act. There theAllahabad High Court expressed its opinion that when a second mortgageedischarged a decree obtained by the first mortgagee, he acquired a charge onthe mortgage property as from the date upon which he made the payment insatisfaction of the decree. The learned Judges were apparently in error inapplying the provision of Section 95 of the old Act which was applicable onlywhen a co-mortgagor discharged the mortgage, to cases coming under Section 74of the Act which was worded in a quite different manner. This distinctionbetween the provisions of Sections 74 and 95 of the old Act was pointed out bya Full Bench decision of our Court in Umarali v. Asmatali :AIR1931Cal251 , and it was held further in that case that after the amendmentof 1929, a co-mortgagor who redeems a mortgage can no longer claim to have anystatutory charge which the old Section 95 provided, and he has the same rightsnow as any other subrogee under Section 92 of the present Act. The reasoning ofthe learned Judges in Shiblal v. Munnilal , is undoubtedlywrong. Whether the decision could be supported on the ground that as themortgage money was paid after the decree was obtained by the earlier mortgageeno suit could be brought on the original mortgage is a question which will bediscussed in the course of this judgment.

8. When a prior mortgage in respect of which subrogation isclaimed by a puisne mortgagee has not been sued upon, the latter, if he wantsto enforce his rights by instituting a suit, would have to bring the suitwithin the period of limitation which was available in law to the priormortgagee himself. The cause of action of the plaintiff in such a suit isexactly the same as that of the original mortgagee, and consequently limitationwill run from the date when the cause of action on the original mortgage arose.This proposition is supported by the decision of the Judicial Committee in Md.Ibrahim Hossain v. Ambika Pershad 39 Cal. 527, and has been accepted as goodlaw by the different High Courts since then: vide Alam Ali v. Beni Charan: AIR1936All33 , Babulal Bay v. Bindhyachal RaiIn the Privy Council case, there were five successivemortgages upon certain properties,--the earliest being under a zeripeshgi deed,dated 20th November 1874, and the latest under a simple mortgage bond, dated17th February 1888, for a sum of Rs. 12,000. The last mortgage which was infavour of Alfan was for the express purpose of paying off the zeripeshgi debtwhich the mortgagee discharged. On 22nd September 1900, the representatives ofAlfan brought a suit to recover Rs. 12,000 as principal and Rs. 23,150 asinterest on a declaration that the properties covered by the mortgage of 17thFebruary 1888, and by the zeripeshgi deed of 20th November 1874 were liable forthe entire amount. In other words, the plaintiff claimed priority on the basisof subrogation over the intermediate mortgagees who were made parties to thesuit.

9. Now the intermediate mortgagees had already institutedsuits upon their respective mortgages and obtained decrees in execution ofwhich the properties comprised in the mortgage bonds were sold. To all thesesuits, except one, the last mortgagee was a party. It was held by theirLordships of the Judicial Committee that the plaintiffs claim for priority inrespect of the zeripeshgi deed was barred by constructive res judicata asagainst those intermediate mortgagees in whose suits the last mortgagee wasmade a party. As against the particular mortgagee who failed to implead theplaintiffs predecessor as a party to his suit, the claim of the latter was notbarred by res judicata, but it was held to be barred by limitation inasmuch asthe suit was instituted more than twelve years after the due date of thezeripeshgi, which was Jyet 1294, Fasli (September 1887). This was a case inwhich the prior mortgage was paid off before a decree was obtained on it, andit cannot be disputed that in such cases the period of limitation within whichthe subrogee must institute his suit is twelve years from the date of paymentin the previous mortgage which was redeemed by him.

10. The question now is what would be the position in law ifthe payment is made after a decree has been obtained by the previous mortgagee,and subrogation is claimed by reason of paying off the mortgage decree. It isnot and cannot be disputed that a prior mortgagee can be redeemed even after adecree is passed on his mortgage, till the sale which might take place underthe decree has been confirmed or a final decree for foreclosure is passed. Thecharge of the mortgagee is not extinguished by the decree. It attaches itselfto the decree, and it is the decree which enforces the charge after it ispassed. It may be that at the date when a mortgage decree has been obtainedmore than twelve years have already elapsed from the due date in the mortgagebond and the point for determination is what would be the rights of a puisnemortgagee if he now pays off the decretal dues. According to certain earlierdecisions, if a puisne mortgagee redeemed a prior mortgage after a decree waspassed upon it, he could be allowed to execute the decree in the same way asthe prior mortgagee could. This is obviously a straightforward method, but thisview has been overruled by the Judicial Committee in the case in Gopi NarainKhanna v. Banshidhar (05) 27 All. 325. There a foreclosure decree on a priormortgage was paid off by a subsequent mortgagee who was made a party to thesuit. By virtue of the rights of subrogation acquired thereby, he wanted tocontinue the proceedings but his application was dismissed, and thereupon hefiled a suit praying inter alia for an absolute decree of foreclosure. It washeld by the Judicial Committee that such a suit was maintainable and was notbarred by Section 244, Civil P.C., as was held by the High Court. "TheirLordships think," so runs the judgment,

that on payment by Gaya Prosad of the sum into Court beforethe expiry of the enlarged time, and acceptance of that sum by the plaintiffs,the decree was spent and became discharged and satisfied. There was, therefore,nothing left to be done in the execution department. It is true that GayaProsad having made that payment acquired under Section 74, T.P. Act, all therights and powers of the mortgagees as such. But this would not have the effectof reviving or giving vitality to a decree which by the terms of it had becomedischarged. Even if that were not so, their Lordships fail to see how therespective rights of Gaya Prosad as owner of the first mortgage and half ownerof the second mortgage, and the respondent as owner of the other moiety of thesecond mortgage, could have been worked out without additions to the decree whichthe Court in executing the decree had no power to make. They are, therefore, ofopinion that a new decree was required for the purposes and Section 244, CivilP.C., was not a bar to the present suit.

11. The position, therefore, is that the puisne encumbrancerwho satisfies an earlier mortgage decree cannot continue the executionproceedings as a representative of the decree-holder. The reasons are twofold:in the first place, the decree being satisfied is no longer executable. In thesecond place, the form in which the decree is passed does not entitle theexecuting Court to work out the rights of the subrogee which might involvedetermination of questions between the defendants inter se. In the case beforethe Judicial Committee, the puisne encumbrancer was made a party to the suitand if the decree was in the proper form as suggested by their Lordships,possibly he could have been allowed to seek his remedy in executionproceedings; but this much is settled, that when, as in the case before us, he isnot a party to the suit or the decree is not in the proper form as would enablea puisne mortgagee who redeems the decree-holder to have his rights worked outin execution proceedings, a suit is the proper and the only remedy.

12. The question now narrows down to this. What should bethe nature of such a suit Would it be a suit to enforce the original mortgagebond upon which a decree has already been obtained or a suit to enforce therights which the decree-holder has acquired on the strength of the decree. Ifthe former view is accepted, the suit would have to be brought within twelveyears from the date of the mortgage bond itself. If the other view is taken,then further questions would arise as to what would be the period of timewithin which such a suit has to be brought and what would be the starting pointof limitation. The question came for consideration before the Madras High Courtin Parvati Ammal v. Venkatarama A.I.R. 1925 Mad. 80 [LQ/MadHC/1924/58] and it was held by WallaceJ., that when the plaintiff paid off a prior mortgage after a decree was passedand before a sale in execution of the decree was confirmed, and subsequentlyinstituted a suit to recover the money advanced, by sale of the mortgagedproperties, the plaintiff must be taken to be subrogated not merely to theprior mortgage in its original form as a mortgage charge but to the decreecharge held by the prior mortgagee, that is, the right to hold the property tosale to discharge the decree debt. This right was free of any restriction, thatit should be worked out within the period of limitation for the enforcement ofthe original mortgage. It was further held that as the prior mortgage decreehad been satisfied and was, therefore, not executable, the plaintiff wasentitled to enforce his lien by way of a suit. For the last proposition WallaceJ., expressly relied upon the pronouncement of the Judicial Committee in GopiNarain Khanna v. Banshidhar (05) 27 All. 325. It appears, however, that thelearned Judge modified his view to a considerable extent in the subsequentdecision in Kotappa v. Raghavayya : AIR1927Mad631 , where heagreed with Madhavan Nair J., in holding that a puisne mortgagee paying off adecree on a prior hypothecation was not entitled to enforce the decretal chargeby a suit, but could only enforce the original mortgage charge which the priormortgagee had and that within the period of limitation allowed to the latter,under law. But the learned Judges relied for their view upon the decision ofthe Judicial Committee in Gopi Narain Khanna v. Banshidhar (05) 27 All. 325,though it was not strictly relevant to the point as it did not deal with thequestion of limitation at all. What weighed very much with the learned Judgesis that in the Privy Council case, the plaintiff who paid off the dues on theprior mortgage filed a fresh suit for foreclosure, apparently on the basis ofthe earlier mortgage, and the Privy Council sustained that action.

13. The identical question was considered by a Full Bench ofthe Allahabad High Court in Alam Ali v. Beni Charan :AIR1936All33 , and it was held by Sulaiman C.J., and Bennet J. (Ganga Nath J.,dissenting) that when a subsequent mortgagee redeemed a decree obtained on anearlier mortgage, the payment gave him all the rights and powers of themortgagee decree-holder as were then subsisting. In other words, he wasentitled to priority over subsequent encumbrances and could recover his amountby sale of the property without any bar of limitation of twelve years from the timewhen the mortgage money was due. The subrogee would to all intents and purposesstand in the shoes of the mortgagee decree-holder though the procedure to befollowed by him to enforce his rights would be different. He would have toinstitute a suit as he is incapable of executing the decree as assignee of thedecree-holder. Such a suit, according to the learned Judges, would be governedby Article 132, Limitation Act, and limitation would run from the date when thedecretal amount was paid and the statutory right acquired. Ganga Nath J.,delivered a dissenting judgment, and expressed the opinion that the subrogeesrights were the same, whether the mortgage he redeemed had already merged in adecree or not. The right of subrogation is based only upon the right of theprior mortgagee to enforce his security, and the subrogee has to act within thesame period as is allowed under law to the mortgagee. The view taken by themajority of the Judges in this Full Bench case was accepted in its entirety bya Division Bench of the Patna High Court in Kamalapati Devi v. Jageshwar Dayal(39) 26 A.I.R. 1939 Pat. 375. The same view was reiterated with slightmodification in the subsequent case of the Patna High Court in Babulal Bay v.Bindhyachal Rai (43) 30 A.I.R. 1943 Pat. 305, and the judgment was deliveredby Chatterji J., who was a party to the earlier decision in Kamalapati Devi v.Jageshwar Dayal (39) 26 A.I.R. 1939 Pat. 375. In the earlier case it was heldfollowing the Full Bench decision of the Allahabad High Court that a suit ofthis description would be governed by Article 132, Limitation Act, and timewould commence to run from the date that the decretal dues were paid.

14. In Babulal Bay v. Bindhyachal Rai (43) 30 A.I.R. 1943Pat. 305, no definite opinion was expressed regarding the article of theLimitation Act which would apply to such cases. Chatterji J. observes in hisjudgment that if Article 182 applied, limitation would run not from the datewhen the prior mortgage decree was paid but from the date fixed in that decreefor payment of the mortgage money, whereas if Article 120 applied, the date ofpayment of the decretal amount would be the starting point. There is nodecision of this Court bearing on this point. Now, the essence of subrogation undoubtedlyis that the party paying off a charge becomes entitled to all the rights of thecharge-holder. It is sometimes spoken of as equitable assignment which meansnot that there is an assignment in fact, but on principles of natural justice,the subrogee is given the same position as if he was an assignee of the charge.We think that it is perfectly logical to say that if at the time when the priormortgage is redeemed, the mortgagee had already obtained a decree, and thoughthe time for bringing a suit on the mortgage bond itself had long expired, thedecree-holder was still capable of realising his decretal dues by sale of themortgage property in preference to any subsequent mortgagee, there is no reasonwhy the same rights should not vest in the puisne mortgagee who redeems themortgage and is entitled to subrogation under Section 92, T.P. Act. Thesubrogee could not be placed in a worse or different position than thecharge-holder himself occupied. Once a decree has been obtained, the mortgageecan no longer sue upon the original mortgage. On the other hand, the decreeitself gives him a right by which he can satisfy the charge from the propertyitself. In such circumstances if the puisne mortgagee who pays off the mortgagedecree is compelled to institute a suit on the original mortgage bond which themortgagee himself could not do, that would be, to quote the language of WallaceJ. in Parvati Ammal v. Venkatarama A.I.R. 1925 Mad. 80, [LQ/MadHC/1924/58] "to set back thehands of the clock of evolution" and "to relegate the puisnemortgagee to an unenforceable charge and deny him an enforceable one." Theresult of such a course would be that in reality there would be no subrogationwhere the money is paid after the prior mortgagee obtains a decree upon hismortgage.

15. The whole trouble is created by the fact that there aretechnical difficulties in the way of allowing a puisne mortgagee who pays offthe dues under a previous mortgage decree, to realise his money by execution ofthe decree itself. If he is not a party to the decree, he cannot execute it atall as the decree is ex hypothesi satisfied by payment, and a satisfied decreecannot be executed by an assignee of the decree. If he is a party to the suit,even then the decree has to be in the proper form which would enable theexecuting Court to give relief in execution proceedings. It is certainlyadvisable for the puisne mortgagee, if he is a party to the suit, to insist onthe decree being drawn up in the proper form, as was suggested by theirLordships of the Judicial Committee. If, however, this is not done or is notpossible, we fail to see any cogent reason why he could not be allowed toenforce by a suit the same rights which he could assert in executionproceedings. The procedure might be different, but the rights, in substance,would remain the same. We would respectfully agree with the view expressed byWallace J. in Parvati Ammal v. Venkatarama A.I.R. 1925 Mad. 80, [LQ/MadHC/1924/58] and we fail tosee why the learned Judge altered his view in the subsequent decision. The decisionin Gopi Narain Khanna v. Banshidhar 27 All. 325, was before the learned Judgewhen he decided the earlier case, and he expressly referred to it in hisjudgment. There was nothing in this case which had any direct bearing on thepresent point. No question of limitation arose in that case as the second suitfor foreclosure was instituted within 12 years from the date of the originalmortgage bond. It is true that the suit instituted by the plaintiff was one forforeclosure, but it would be a suit for foreclosure even if it was based on thedecree and not on the mortgage. On the other hand, the judgment shows that theappellant was held entitled to a moiety share of Rs. 15,093 which was paid intoCourt by Gaya Prosad on 3rd January 1896, and not the amount which would havebeen due on the mortgage. No interest at the contract rate was allowed as ithad to be allowed if the old mortgage was still regarded as subsisting, andonly by way of compensation, six per cent, interest was allowed on a moietyshare of the original principal money advanced. The form in which the suit wasinstituted by the plaintiff cannot be taken to show that in the opinion oftheir Lordships, the suit must be upon the basis of the original mortgage.Reading the judgment as a whole, it seems to us quite proper to conclude thatthe suit by a puisne mortgagee who had satisfied a decree on an earliermortgage should be to enforce the rights under the decree and not the originalmortgage, and a suit is necessary because the form of the decree does not allowthe puisne mortgagee to obtain relief in execution proceedings.

16. We hold, therefore, that a puisne encumbrancer whosatisfies a decree obtained by a prior mortgagee is in law relegated to theposition of the decree-holder, and though he cannot execute the decree unlesshis rights are properly declared in the decree itself, he can institute a suitto enforce his rights under the decree, and if the decree paid off by him wasone for sale, he can in the suit brought by him pray for sale of the propertyto which the decree relates, for the discharge of the decretal debt. As thedecree is a mortgage decree, the suit should be regarded as one to enforce thepayment of money charged on immovable property, and in our opinion, Article132, Limitation Act, is the proper article to be applied in such cases. Wecannot agree with the view taken in Alam Ali v. Beni Charan :AIR1936All33 that the starting point of limitation in such suits is the date ofpayment of the decretal dues by the puisne mortgagee. Sulaiman C.J. spoke of astatutory right accruing on the date of payment. We think that as the rightwhich accrues on payment is the right to enforce the charge that had alreadymerged in the decree, it should be enforced within 12 years from the date ofpayment mentioned in the decree itself. To this extent, we agree with theopinion, though tentatively expressed by Chatterji J. in Babulal Bay v.Bindhyachal Rai

17. In the case before us, the plaintiffs, in our opinion,would be entitled to a decree for sale of the properties comprised in themortgage decree if they succeed in showing that the present suit is within 12years from the date of payment specified in the preliminary decree. Thepreliminary decree in this case was passed on 20th January 1915. If the date ofpayment was six months after that date, the present suit as a suit to enforce acharge is clearly barred by limitation. Mr. Mukherji appearing on behalf of theappellants contends before us that the date of payment might have been extendedby subsequent orders. We do not think it probable that it was extended byanother three years, but as we have no materials before us upon which we cancome to any definite conclusion on the point, we are constrained to send thematter back in order that this fact may be ascertained on proper materials. Thecase will, therefore, go back to the trial Court with a direction that it wouldon going through the records of the mortgage suit, or failing that, such otherevidence as the parties might choose to adduce, come to a finding as to whetherthe date of payment of the mortgage money in the decree was beyond 12 yearsfrom the date of the institution of the present suit. If more than 12 yearshave already elapsed from that date, the present appeal will stand dismissedand the judgment of Jack J. will stand. If the suit is within 12 years from thedate, the plaintiffs would get a decree for the realisation of the sum claimedby them by sale of the properties specified in the plaint. Liberty should begiven to the mortgagors or the representatives to pay off the amount within acertain time. The appeal is disposed of in the manner indicated above. Therewill be no order as to costs in this appeal.

William McCormick Sharpe, J.

18. I agree.

.

Shamsuddin Bhuya and Ors.vs. On death of Haider Ali Bhuya one of his heirs Asadulla and Ors. (25.08.1944 - CALHC)