H.R. Khanna, J. - (1.) THE question, as to whether the Plaintiff -Appellant is subrogated to the rights of Defendants and 8 as mortgagee of the house in dispute, arises for determination in this regular second appeal, against me judgment and decree of the learned Senior Subordinate Judge, Delhi, affirming on appeal the decision of the that Court by which the Plaintiff -Appellant's suit was dismissed.
(2.) THE brief facts of the case are that Jagan Singh, Dharam Singh, and Chander Sain, Defendants 4 to on -were the owners of the houses standing on four plots or land bearing Nos. 58, 59, 60 and 106 situated In Dev Nagar Karol Bagh, New Delhi. Defendants 4 to 6 mortgaged the above -mentioned four houses for Rs. 15,500/ -% registered mortgage deed dated 1 -8 -1944 in favour or Harbans Singh and Mohar Singh Defendants 7 and 8. On ,24 -10 -1944 Defendants 4 to 6 mortgaged the above -mentioned four houses in favour of Ramo Devi, Defendant No. 2, for Rs. 2,000/ - Rama Devi, Defendant No. 2 subsequently transferred her aforesaid mortgagee rights in favour of Ram Kaur, Defendant No. 10. On 25 -1 -1947 Defendants 4 to 6 mortgaged the above -mentioned four houses in favour or jana Devi, Defendant No. 1, for Rs. 1000/ -. Tana Devi brought a suit on the basis of mortgage in her favour and obtained a decree on 8 -8 -1951 for recovery of the mortgage money by sale of the property. In the meanwhile Plaintiff who was a creditor of Jagan Singh, Defendant No. 4, obtained a money decree for the recovery of Rs. 2,000/ - against Defendant No. 4. In execution of that decree the Plaintiff got sold in Court auction the house in dispute, which stands on plot No. 60 and was one of the four houses which had been mortgaged by Defendants 4 to 6 in favour of Defendants 7 and 8. The Plaintiff purchased the house in dispute in that Court auction with the permission of the Court for Rs. 1820/ - on 17 -9 -1951. The sale certificate was issued in favour of the Plaintiff on 7 -6 -1952 and it was recited therein that the sale in favour of the Plaintiff was subject to the mortgage in favour of Defendants 7 and 8 The Plaintiff paid Rs. 4600/ - to Defendants 7 and 8 on 4 -4 -1952 as per receipt Exhibit P. 1 for redeeming me mortgage of the house in dispute in favour of those Defendants. It has been mentioned earlier that Defendant No. 1 obtained a decree for recovery of the mortgage amount due to her by sale of the mortgaged property. In execution of that decree the house in dispute as well as another house were sold and were purchased by Chander Bhushan, Defendant No. 3. The Plaintiff brought the present suit for a declaration that he was the owner of the house in astute and that the sale of the house in favour of Defendant No. 3 was ineffective against the rights of me Plaintiff. According to the Plaintiff, Defendants 1, 2 and 9 on account of their gross neglect did not get their mortgagee rights mutated and as such he had no knowledge or their charge on the house in dispute. Chhajju Singh, Defendant No. 9, was also impleaded as a party in the suit because the house in dispute had been mortgaged in this favour by Defendant No. 4 for Rs. 1,000/ - on 13 -4 -1944. The suit was contested by Defendants 1, 3, 9 and 10 who pleaded that the Plaintiff was bound by the mortgages in their favour. Following Issues were framed by the trial Court: (i) Whether the Plaintiff was competent to redeem the mortgage in favour of Defendants 7 and 8, and whether he acquired any rights in the suit house by virtue of such redemption? (ii) whether Defendants 1, 2 and 9 fraudulently and by gross neglect failed to get their mortgages mutated and what Is its effect? (iii) Whether the mortgages In favour of Defendants 1, 2 and 9 were prior to the mortgages in favour of Defendants 7 and 6? (iv) If Issue No. 3 is proved, has the Plaintiff a preferential right as against these Defendants? (v) Whether the Plaintiff has become, the owner of the suit house? (vi) Relief? The issues were decided against the Plaintiff are in favour of the Defendants and the Plaintiff's suit was dismissed. In appeal before the learned Senior Subordinate judge the findings of the trial Court on issues 2 to 4 were not challenged. It was, however, contended on behalf of the Plaintiff -Appellant that by payment of Rs. 4600/ - to, Defendants 7 and 8 at the time of the redemption of the house in dispute, the Plaintiff became subrogated to the rights of Defendants 7 and 8. This contention was not accepted by the learned Senior Subordinate Judge be -cause he was of the view that there had been only partial redemption of the mortgage in favour of Defendants 7 and 8. The Plaintiff's appeal was, accordingly, dismissed.
(3.) AT the hearing of the second appeal, the learned Counsel for the Appellant has argued that the Plaintiff Appellant was subrogated to the rights of Defendants and 8 on payment of Rs. 4600/ - to them and the finding of the courts below in this respect is not correct. It is further contended that the mere fact of there having been partial redemption of the mortgage in favour of Defendants 7 and 8 by the Plaintiff would not prevent his being subrogated to the rights of Defendants 7 and 8 because the integrity of the mortgage had been split up. As against that the learned Counsel for the Respondents have argued that the ground about splitting up of the mortgage was not taken in the courts below and should not be allowed to bat taken for the first time in second appeal. It is further argued that there can be no subrogation in case of only partial redemption of the previous mortgage, contention has also been raised that the integrity of the mortgage in favour of Defendants 7 and 8 remained intact and as such also the Plaintiff could not by paying Rs. 4600/ - be subrogated to the rights of Defendants and 8.;