Decided on August 09,1869



- (1.) In this case the facts, as stated before us by the plaintiff, appellant, and not contested by the defendant, respondent, were these: One Gopal Shebait was possessed of two properties, which for brevity's sake, I will call No. 1 and No. 2. Both these properties were mortgaged by him to one Ramnarayan by one simple mortgage bond. Subsequently to the execution of this mortgage bond, a creditor of Gopal Shebait obtained a decree against him, and in execution of that decree the creditor attached the properties No. 1 and No. 2, and proceeded to get them sold. The properties were looted and sold separately; the plaintiff in this suit becoming the purchaser of No. 1 for rupees 212, and the defendant in this suit becoming the purchaser of No. 2 for rupees 522. The plaintiff and defendant respectively got into possession, and after they had done so, Ramnarayan, in one suit sued Gopal Shebait the mortgagor, the present plaintiff, and the present defendant, for the purpose of recovering his loan by enforcing his lien on these two properties. He failed in the first Court, and his suit was dismissed; but on appeal this decision was reversed; no decree, however, was drawn up except the unintelligible one of "appeal decreed." Ramnarayan seems first to have attached or threatened to attach the larger property, No. 2. The defendant in this suit, who had purchased that property, thereupon came to terms, and on getting a discharge from Ramnarayan surrendered to him a portion of the property No. 2 and in consequence satisfaction was entered up for half the amount which was due under Ramnarayan's decree. When the present plaintiff heard of this, he at once objected. He represented to the Court that he and the defendant were not liable in equal shares; and be paid into Court the sum of rupees 222, which he said represented the full amount of liability. Ramnarayan, however, disregarding this, took steps to sell the plaintiff's property No. 1, and notwithstanding the opposition of the plaintiff, the sale was ordered to take place. The plaintiff thereupon paid rupees 187 to get his property released. He then brought the present suit to recover this sum of rupees 187 from the defendant, on the ground that he and the defendant were liable for the debt in proportion to the value of their respective properties, and that the rupees 187, which he had been compelled to pay, were really due from the defendant. The defendant denies his liability.
(2.) Some confusion has arisen by the plaintiff in his plaint, and by both plaintiff and defendant, in the course of his argument, speaking as if the result of Ramnarayan's suit had been to make the plaintiff and defendant liable for a sum of money, whereas, if that decree had been properly drawn up, it would have been a money-decree against Gopal only, with a declaration that the properties No. 1 and No. 2 were liable to be sold, clear of subsequent encumbrances, in satisfaction of the mortgage bond-debt.
(3.) The real effect of the decree, if it had been thus drawn up, would have been not to have made either plaintiff or defendant directly liable for any sum of money at all, but it would, nevertheless, have made them both indirectly liable to pay the whole of what was due under the decree; as otherwise their property could be sold in satisfaction of it. What I understand the plaintiff to urge in this case, and what I think he has urged throughout, though not always in language legally precise, is this: that the debt due under the mortgage bond, with its accumulations, was a general burden upon the two properties for which no portion of those two properties was presumably more liable than another; that as between the plaintiff and defendant the liability of the two properties ought to be considered not as joint, but as several, being divided in proportion to the respective values of the properties; and that the plaintiff having been compelled to discharge a burden for which the property purchased by the defendant was legally liable, he may recover the amount so paid from the defendant.;

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