Raghava Rao, J. - (1.)In this case a mortgagee who paid up a prior charge-decree on the hypotheca in order to avert an imminent sale in execution of the decree sought to recover the amount paid, basing himself in his plaint solely on the right of subrogation recognised by the 1st and 2nd paragraphs of Section 92, Transfer of Property Act. The contesting defendants were certain alienees of the hypotheca who resisted the right so claimed. The right of subrogation has been held against by both the Courts below on the ground that it could only be exercised and was not within the period of limitation applicable to the original charge irrespective of the date of discharge. The Courts below have however granted relief to the plaintiff applying Section 72, Transfer of Property Act. The lower appellate Court has also relied on the equitable lien or charge found by it to exist in favour of the plaintiff on the authority of the ruling of the Calcutta high Court in Ambica Charan v. Ramgati, A. I. R. (2) 1915 Cal. 369 : (28 I. C. 571). It was also inclined to think that the plaintiff's claim could be sustained on the basis of the personal right of reimbursement recognised by Section 69, Contract Act, although in the view that it took that either Section 72(b), Transfer of Property Act, applied or that there was an equitable lien or charge enforceable by the plaintiff, it did not pursue the point further and did not give a decision thereon.
(2.)Mr. Srinivasa Rao for the appellant, one of the contesting defendants in the suit, urges that the right of subrogation, the only basis of the plaint, having been found against, the suit should have been straightway and simpliciter dismissed. I do not agree. The. facts were not in controversy and the Courts below were entitled to adjudicate on the rights of the parties irrespective of the precise legal label employed and the particular legal position envisaged in the plaint.
(3.)It is next urged by the learned counsel that Section 72(b) cannot and does not apply to the present case, because, firstly, this suit is not for the principal money under the plaintiff's own mortgage with the amount deposited in Court to avert the execution sale added to the principal money, as authorised by Section 72, Transfer of Property Act, but only for the latter amount, there having been a suit for the principal money filed even before the deposit, and because, secondly, there is no proof that the mortgagor had been called upon but failed to take proper and timely steps to preserve the property as enjoined by the proviso to the section. The Courts below have answered the first objection by pointing out that the two suits were tried together. But the second objection still remains in my opinion unanswered. I am not therefore prepared to reject this contention of the learned counsel to this extent.