Satish Chandra, J. - (1.) THIS is an application in revision. It arises out of a suit for recovery of Rs. 410.75.
(2.) THE Plaintiff opposite party filed a suit against the Defendant Appellant on the allegation that the Plaintiff as well as the Defendant had jointly executed a mortgage in favour of one Prayag Dutt Sharma. Sri Sharma brought a suit on the foot of the mortgage deed. The suit was decreed on 7 -10 -1952 for Rs. 10,630/ -. The mortgagee felt aggrieved and filed an appeal praying that the decree for interest be also awarded. The appeal was allowed and the suit was decreed for Rs. 10,600/ - with interest with effect from 7 -10 -1952. The Defendant had paid half of the principal mortgage amount. The Plaintiff had to pay not only the other half of the principal but also the entire amount of interest to the mortgagee. Thereafter he brought the present suit for contribution of the half share of the interest, namely, Rs. 410.75. The suit was contested on a twofold plea. It was urged that the Small Cause Court had no jurisdiction to entertain the suit and that the Defendant was not liable to pay the interest. The Judge Small Cause Courts rejected both the pleas in bar and decreed the suit. The Defendant filed a revision which was also dismissed by the District Judge. At the time of the hearing of the revision before a learned Single Judge of this Court, it was found that there was a conflict of opinion in this Court on the question of jurisdiction. Consequently he referred the case to a larger Bench.
(3.) ARTICLE 42 of the Provincial Small Cause Courts Act reads.: (42) A suit by one of several joint mortgagors of immovable property for contribution in respect of money paid by him for the redemption of the mortgaged property. It is well settled that the Entries appended in the Schedule to the Small Cause Courts Act have to be strictly construed because they oust the jurisdiction of the court in respect of matters mentioned in the various Entries. Unless a suit of Small Causes nature squarely falls within the purview of a particular Entry, the Small Cause Courts would continue to retain jurisdiction over it. Entry 42 relates to a suit for contribution in respect of money paid for the redemption of the mortgaged property. Section 95 of the Transfer of Property Act confers a right in this respect upon a co -mortgagor. It says: Where one of several mortgagors redeems the mortgaged property, he shall, in enforcing his right of subrogation Under Section 92 against his co mortgagors, be entitled to add to the mortgage -money recoverable from them such proportion of the expenses properly incurred in such redemption as is attributable to their share in the property. This section refers to Section 92, which reads: 92. Any of the persons referred to in Section 91 (other than the mortgagor) and any co mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgage.... It would be seen that Sections 92 and 95 confer a limited right upon the redeeming mortgagor. The right exists in relation to redemption, foreclosure or sale of the property. In these matters the redeeming mortgagor is entitled to acquire the same rights which the mortgagee has. Thus on redemption, the mortgagor, who has paid the money in respect of the redemption, is entitled (to) ask for contribution by way of a decree for foreclosure or sale of the mortgaged property, against the other remaining co -mortgagors. It is such a kind of suit which is contemplated by Entry 42. In the present case, there is no relief for foreclosure or sale of the mortgaged property. The present is a simple suit for recovery of money. Such a suit is provided for by Section 69 of the Contract Act which says: 69. A person who is interested in the payment of money which another is bound by law to pay and who therefore pays it, is entitled to be reimbursed by the other. The present suit was a plain suit of reimbursement. The Plaintiff did not claim any other relief provided by Sections 92 and 95 of the Transfer of Property Act. The suit of the present kind is, in our opinion, outside the purview of Entry 42.;