Madhavan Nair, J - (1.)This second appeal arises out of a suit filed by the plaintiffs for the redemption of two items of property. Plaintiffs Nos. 1 to 3 are the owners of the property and the plaintiffs Nos. 4 and 5 are their lessees. The suit properties had been mortgaged by the predecessors of the plaintiffs usufructuarily to the first defendant on 19 September, 1901. The defendant contended that the plaintiffs are not entitled to redeem item No. 1 as they have parted with it and that they are entitled to remain in possession of item No. 2 till they are paid in addition to the mortgage amount the sum of Rs. 623-8-3, which they were compelled to pay in order to save the property from sale in execution of the hypothecation decree in Order 8. No. 336 of 1903. As regards the first item the lower Appellate Court agreeing with the District Munsif upheld the plea of the defendants and dismissed the plaintiffs suit. As regards the second item the plaintiffs were given a decree for its redemption, but it was held by the lower Appellate Court differing from the District Munsif that they were not bound to pay the 1 defendant the additional amount claimed by him as in its view the 1 defendant's right to recover that amount was barred by limitation on the date of the suit. As regards the second item the defendants have filed a second appeal, while as regards the first item the plaintiffs have filed a memorandum of objection. The entire case is thus before us in second appeal.
(2.)I shall deal with the case of the parties as regards each item separately. Item No. 1.--This item is the northern half of Survey No. 47. The 1 defendant is admittedly in possession of this half and he obtained possession as a mortgagee from the plaintiffs predecessors. The plaintiffs sold the northern half to P.W. No. 2 under Ex. Bin 1912, but the sale did not take effect and P.W. No. 2 is now in possession of the southern half. It is alleged that on account of this sale the plaintiffs have lost the right to redeem this property. The plea is clearly unsustainable. The ineffective sale of the northern half to P.W. No. 2 does not in any way affect the plaintiffs right to redeem this item. As already observed, the 1st defendant is a mortgagee. The sale to P.W. No. 2 has not affected his possession of this item in any way and the plaintiffs have not lost their title to it. As the mortgagee of this item he cannot dispute the right of the mortgagors to redeem it. The decree of the lower Appellate Court has provided for the payment of the full mortgage amount. Setting aside the lower Court's decree I would allow the memorandum of objections and give the plaintiffs a decree for redemption of this item. Item No. 2.--To understand the points involved in deciding the appeal as regards this item, it is necessary to state a few facts. Before the mortgage to the 1st defendant this item had already been mortgaged to another person in 1897. The 1 defendant is the second mortgagee, The prior mortgagee instituted a suit O.S. No. 336 of 1903, on his mortgage and brought the property to sale, but it was not sold as the 1 defendant herein paid up the decree amount, Rs. 623 8-3 with interest. This amount was paid on 23 October, 1915. The plea of the 1st defendant now is that the plaintiffs are not entitled to redeem this item unless he is paid this amount in addition to the amount of his own mortgage. The payment by him of the sum that he now claims is not disputed. The lower Appellate Court disallowed the 1 defendant's claim as it held that his right to recover it was barred by limitation on two alternative grounds: Ground No. 1: The first mortgage came into existence in 1897. The present suit was instituted in 1920. It is admitted that a suit by the first mortgagee to recover the amount of his mortgage in 1920 would be barred by limitation. The 1 defendant has the right to enforce the security by virtue of subrogation. As the prior mortgagee's suit to enforce the security is barred by limitation, the present 1 defendant's right, viewing it as a claim to enforce the security by virtue of subrogation, is also barred by time. In support of this ground the learned Judge relies on Mahommed Ibrahim Hossain Khan V/s. Ambika Prashad Singh 14 Ind. Cas. 496 : 39 C. 527 : 11 M.L.T. 265; (1912) M.W.N. 367 : 9 A.L.J. 362 : 14 Bom. L.R. 280 : 16 C.W.N. 505 : 15 C.L.J. 411 : 22 M.L.J. 468 : 39 I.A. 68 (P. C) and Sibanand Misra V/s. Jagmohan Lal 68 Ind. Cas. 707 : 3 P.L.T. 533 : (1922) Pat 331 : A.I.R. 1922 Pat. 499 : 1 Pat. 780. Ground No. 2: If the 1 defendant is entitled to sustain an action for reimbursement as distinguished from his right to enforce his security by virtue of subrogation, the learned Judge was of opinion that the cause of action for such a suit was the date of payment, i.e., 23 October, 1915. As more than three years had elapsed from that before the present suit was filed, the 1 defendant could not claim the amount in 1920. This view is supported by the decision in Sibanand Misra V/s. Jagmohan Lal 68 Ind. Cas. 707 : 3 P.L.T. 533 : (1922) Pat, 331: A.I.R. 1922 Pat. 499 : 1 Pat. 780 (see the closing portion of the judgment).
(3.)The appellants argue that the first ground is untenable and that the 1 defendant's right to recover the amount is not barred as when he paid the amount on 23 October 1915, he must be considered to have obtained a charge on this item of property and that this charge can be enforced at any time before the expiry of twelve years from the date of payment. This view is supported by the decision in Bora Shib Lal V/s. Munni Lal 63 Ind. Cas. 604 : 44 A. 67 : 3 U.P.L.R. (A.) 193 : 19 A.L.J. 840; A.I.R. 1922 All 153. The appellants quote Pravati Ammal v. Venkatarama Aiyar 81 Ind. Cas. 771 : 47 M.L.J. 316 : (1924) M.W.N. 510: 20 L.W. 278 : A.I.R. 1925 Mad 80 also in their favour,