Gangaram vs Harihar Prasad and Others

Allsop, J.—This second appeal arises out of a suit on the basis of a mortgage. One of the defendants, viz. defendant 7, was impleaded as a subsequent mortgagee. His defence was that he had been subrogated to the position of a prior mortgagee because he had redeemed a previous mortgage. The mortgage in suit was executed on 23rd June 1924. The mortgage in favour of defendant 7 was executed on 24th January 1924. There was a provision in that mortgage that a certain sum of money was left with him to redeem a prior mortgage dated 17th August 1915 in favour of one Bhagwat Das. Defendant 7 did redeem this mortgage and the Courts below have held that he was subrogated to the position of Bhagwat Das and have decided the case accordingly. The argument in second appeal is that defendant 7 could not be subrogated to the position of Bhagwat Das because under the provisions of para. 3 of Section 92 T.P. Act, there was no registered instrument by which the mortgagee agreed to such subrogation. It seems to us that there is no force in this argument. u/s 91, T.P. Act, any person other than the mortgagee of the interest sought to be redeemed who has any interest in or charge upon the property mortgaged has a right to redeem and a subsequent mortgagee therefore has a right to redeem. Under para. 1 of Section 92, any of the persons referred to in Section 91, other than the 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 mortgagee.

The result of this is that any sub-sequent mortgagee who redeems a prior mortgage has a right to be subrogated to the position of the prior mortgagee. Para. 3, Section 92, T.P. Act obviously refers to persons other than subsequent mortgagees who advance money to a mortgagor to enable him to redeem a mortgage. It has been suggested that the case of defendant 7 can, be distinguished because the money for redeeming the mortgage was definitely left in his possession. We cannot see that there is any distinction.

There is no force in this appeal and we dismiss it with costs.