JUDGMENT
1. This appeal arises out of a suit for contribution brought under the following circumstances. Sarju Prasad, the father of the plaintiff-appellant, owned shares in eight villages which he mortgaged on the 20th of April 1893 to one Raghubans Shukul. Before this mortgage was executed, he had mortgaged four out of the eight villages under three prior mortgages. These prior mortgages were discharged by sale of two of the villages, namely, Khargara and Banwarpara, and a 4-anna share of Dudrajh. The two villages Baharia and Khargara were sold under a private sale to persons who are not parties to the present suit and the proceeds of the sale went to discharge the three prior mortgages. The Court below has found in respect of these two villages that they had contributed more than their rateable share of liability for the three prior mortgages.
2. Of the mortgaged villages Pakri Zabti, Sukroli and two annas of the village Dudrajh were purchased at auction by the defendants in execution of a simple money decree. Both the Courts below have held that the purchase was sub jest to the mortgage held by Raghubans Shukul, Baghubans Shukul obtained a decree on the basis of his mortgage of the 20th of April 1893 and in execution of it be caused the village of Lonha, which remained in the hands of the plaintiff, after the death of his father Sarju Prasad, to be sold by auction and a sum of Rs. 4,114, was realised by that sale. As this amount was insufficient for the discharge of the mortgage held by Raghnbans Shukul, he cause the 2 annas share in Dudrajh to be sold by auction and the sale realised a sum which was sufficient to discharge the whole mortgage. There was a surplus left which was attached and obtained by other creditors. The plaintiff instituted the present suit for contribution, on the allegation that his village Lonha had contributed more than its rateable share of liability under the mortgage in favour of Raghubans Shukul and that he was, there fore, entitled to recover the excess amount from the villages purchased by the defend, ants in execution of a simple money decree, to which we have referred, and subject to the mortgage in favour of Raghubans Shukul. The Court of first instance dismissed the suit, on the ground that the mortgagor could not maintain the suit for contribution against purchasers of the equity of redemption of a part of the mortgaged property. In support of this view the learned Judge of the Court below referred to a decision of the Calcutta High Court in the case of Magniram v. Mehdi Hossein Khan 31 C. 95 : 8 C.W.N. 30.
3. In our opinion that ruling has no application to the present case. The case of the plaintiff, we think, falls within the purview of Section 82 of the Transfer of Property Act, which provides that where property belonging to different owners is subject to a common mortgage, the liability of each of the property subject to the mortgage is proportionate to its value as compared with the value of all the properties mortgaged.
4. After the sale of the three villages mentioned above in execution of a simple money decree in satisfaction of which those villages were purchased by the defendants, the defendants became owners of part of the mortgaged property and under the principle of the rule laid down in Section 82, the property subject to the mortgage of Raghubans Shukul became the property of the plaintiff and other owners of other parts of the property, that is to say, became the property of the plaintiff and the defendants. If, therefore, the plaintiff's property has contributed more than its rateable share of liability, the plaintiff is entitled to obtain contribution in respect of the amount which is in excess of his rateable share of liability. The view which the learned Subordinate Judge and the learned Judge of the lower Appellate Court have adopted seems to us to be erroneous.
5. Mr. Iqbal Ahmad on behalf of the respondents referred ns to the Full Bench ruling in Ibn Hasan v. Brijbhukhan Saran 26 A. 407 : A.W.N. (1904) 74 : 1 A.L.J. 148 (F.B.). The question in that case was whether a suit for contribution could be maintained unless whole of the mortgage debt had been discharged. That is not the case here, Admittedly the whole of the mortgage of Raghubans Shukul has been discharged by the sale of the village Lonha and the 2-annas share in Dudrajh. This case is very similar to the case of Bhagwan Das v. Karam Hussain 11 Ind. Cas. 145 : 33 A. 708 : 8 A.L.J. 854. The mortgage having been completely discharged, the plaintiff, as owner of one of the properties whish was subject to the mortgage, is entitled to claim contribution, and we hold that the Courts below were wrong in dismissing the suit simply on the ground that the plaintiff represents one of the original mortgagors. There was no question of the application of Section 56 of the Transfer of Property Act to the present case. There was no private sale of the property by the mortgagor to the defendants and the question of the whole of the burden of the mortgage debt being taken over by the mortgagor, to be borne by his property whish was left unsold, did not arise.
6. In this view the case must go bask to the Court of first instance for trial on the merits as to the amount of the contribution to whish the plaintiff is entitled. As a 2-annas share of the village of Dudrajh has been sold by auction and has thus already contributed its share of liability for this mortgage there san be no claim as against that village. The only other villages whish are liable to rateable contribution are the villages Pakri Zabti and Sukroli whish are in the possession of the defendants.
7. Mr. Iqbal Ahmad asked us to hold that the Court of first instance should be directed to take into consideration, in ascertaining the amount of rateable liability of the village Lonha, the two villages of Baharia and Kherighat which were sold to strangers by the mortgagor in order to discharge the three prior mortgages. As we have said above, the learned Subordinate Judge has found that those villages had contributed more than their rateable share of liability for the three prior mortgages. Therefore, those villages ceased to be liable under the mortgage in favour of Raghubans Shukul, Similarly the two villages of Khargara and Bhawapur and 4-annas share of Dudrajh, which were sold by auction in execution of the decree on the three prior mortgages, also cased to he liable under Baghubans Shukul's mortgage. This is conceded on behalf of the respondents. In view of the finding of the lower Court as to the discharge of the prior mortgages out of the proceeds of the sale of the villages Baharia and Kherighat, those villages should not be taken into consideration in this case. So that in apportioning liability the Court below has to take into account the three villages Lonha, Pakri Zabti and Sukroli.
8. The result is that we allow the appeal, set aside the decrees of both the Courts below and remand the case to the Court of first instance under Order XLI, Rule 23 of the Code of Civil Procedure, with directions to re admit the suit under its original number in the register and to any and dispose of it according to law, bearing in mind the observations made above. The appellant will have his costs of this appeal including fees on the higher scale. Other costs will be costs in the cause.