IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 164 of 1995 With RSA No.214 of 1995. Date of decision: October 8, 2010. 1. RSA No.164 of 1995. Lal Singh and others. ….Appellants. Versus Bilwa Mangal and others. ….Respondents. 2. RSA No.214 of 1995. Lal Singh and others. ….Appellants. Versus Bilwa Mangal and others. ….Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes. For the appellants : Mr. Ajay Kumar, Advocate. For respondents : Mr. K.D. Sood, Advocate, for respondents 1(a) to 1(c). None for other respondents. Surinder Singh, J (oral) : Since common questions of law and facts arise in both the above titled appeals, thus taken up together, for its decision. 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - 2. In both these appeals [ RSA No.164 of 1995 and RSA No. 214 of 1995] the appellants have challenged the judgment and decree dated 24.10.1994 passed by the learned Additional District Judge (2) Kangra at Dharamshala, whereby he affirmed the passing of final decree by the learned trial Court for possession by way of redemption in favour of Smt. Sandhya Devi (dead) now being represented by her legal representatives respondents No.1 (a) to 1(c). 3. Both these regular second appeals were admitted on the following common substantial questions of law:- (i) Whether the learned Courts below were right in entertaining the application under Section 2(2) of the Code of Civil Procedure and proceeding to pass final decree when such decree already was passed in appeal by the learned Appellate Court? (ii) Whether the application under Section 2(2) of the Code of Civil Procedure is maintainable when no preliminary decree under Order 34 Rule 7 of the Code of Civil Procedure has been passed and only in such event can a provision of Order 34 Rule 8 be resorted to and whether the learned Courts below were right in decreeing the application of the respondent No.1 in the circumstances when the appellants-applicant after having filed an executed petition abandoned the same and did not pursue it? (iii) Whether the learned Courts below were correct in invoking the provisions of Section 2(2) of the Code of - 3 - Civil Procedure when it does not provide for passing of a final decree in a mortgage suit and the suit having been disposed of on compromise, the proceedings had become final inter se between the parties? (iv) Whether the learned Trial Court was justified in not allowing the appellants to examine the handwriting expert for the purpose of comparison of the handwriting of Shri Amar Chand? 4. I have heard the learned counsel for the parties and have gone through the records of the courts below. 5. (a) The facts giving rise to the present appeals can be stated thus. Two civil suits, one bearing No. Civil Suit No.158 of 1974 was filed by Sandhya Devi deceased against Kulbhushan and others and another Civil Suit No.159 of 1974 was filed by Lal Singh Balbir Singh, Uttam Singh against the same persons for redemption of the suit land. (b) Both the suits aforesaid were decided by passing a compromise decree on the agreement, arrived at inter se the parties on 30.9.1980, later which was challenged in appeal by the plaintiffs in Civil Suit No.159 of 1974. (c ) In appeal before the learned Additional District Judge, again the compromise was arrived at between the parties. - 4 - (d) On 2nd May, 1985 in both the suits, the trial court decree was modified by way of compromise decree as per the statements of the parties and their counsel recorded by the learned Additional District Judge. (e) According to the compromise, the appellants Uttam Singh, Lal Singh, Balbir Singh, Surinder Singh and Smt. Pritma Devi would get 4th share of the suit land after the redemption and seek partition, regarding which the respondents Sandhya Devi, Kulbhushan, Kuldip, Kuljit and Mehar Singh would take necessary steps on or before 10.6.1985. Remaining three shares would go to the plaintiffs-respondents aforesaid (Sandhya Devi and others), however in respect to Pritma Devi and Surinder Singh, who were the defendants in that suit gave up their shares. The proportionate amount of the mortgage money was to be paid by Uttam Singh and others to the respondents- defendants Sandhya Devi on or before 10.6.1985. After the partition appellant-defendant Sandhya would be entitled to get the possession of their share. Accordingly, the judgment and decree - 5 - passed by the learned trial Court was modified to the above extent. A copy of the decree-sheet passed in Appeal No.41/82 titled as Uttam Singh and others vs. Sandhya Devi and others was prepared and is at page-143 in CMA No.97/89. 6. The matter did not rest there. Thereafter Sandhya Devi filed CMP No.97/89 against mortgagees namely Kulbhushan and others under Section 2(2) of the Code of Civil Procedure to granting final decree in Civil Suit No. 159/74 in the Court of Senior Sub Judge, Kangra and another application CMP No.23/87 was also filed against same party in Civil Suit No.158/74. Both the CMPS were decided and allowed by separate judgments on 31.7.1991 by Senior Sub Judge, Kangra at Dharamshala. The relief sought was granted in favour of Sandhya Devi and objections filed by the co-mortgagors were dismissed. 7. However, it is pertinent to note that mortgagees did not contest the said applications. The final decree for possession by way of redemption in favour of Sandhya Devi, was passed qua the suit land. Consequently, Sandhya Devi plaintiff/applicant was deemed to be mortgagee with possession qua the shares of co-defendants namely Uttam Singh, Lal Singh, Surinder Singh, Balbir Singh and Pritma Devi, - 6 - having given up/ failed to pay their share of redemption of money to Sandhya Devi. 8. The aforesaid order if seen in view of the order/ decree passed on a fresh compromise by parties in appeal by the learned Additional District Judge on 2.5.1985, which modified the original decree dated 30.9.1980, the appellants Uttam Singh, Lal Singh, Surinder Singh, Balbir Singh and Pritma Devi did not contribute their shares to the mortgage amount to Sandhya Devi as agreed by them before the learned Additional District Judge on 2.5.1985. Though, they stated that they had paid this amount, but this is not proved to have been paid. 9. The appellants herein felt aggrieved by the judgment passed by the learned Senior Sub Judge in aforesaid CMPs and challenged it before the learned District Judge by filing two separate appeals, which were dismissed, thus assailed it by filing the above two Regular Second appeals. 10. Though, these second appeals were admitted on the above substantial questions of law, but in my opinion, the following substantial question of law arises for determination in both the appeals:- - 7 - “ If one or more mortgagors redeem the entire land where the remaining co-mortgagors have not contributed towards the mortgage amount can resist the application for passing of the final decree under Section 2(2) of the Code of Civil Procedure and what remedy would be available to the non-redeeming mortgagees?” 11. The learned counsel for the parties have placed their reliance on one judgment of the apex Court, passed in Ganeshi Lal v. Joti Pershad [AIR 1953 SC 1, and others of the High Courts, in Krishna Menon Bhaskara Menon and others v. Madhavan [AIR 1976 Kerala 62 (DB) and Jamiat Singh v. State of Punjab and others [ AIR 1984 Punjab & Haryana 351. 12. The question that needs to be settled is the extent of the rights of a subrogee in the present appeals. By virtue of redemption, does he get all the right of mortgagee and hold a mortgage as a shield against the co-mortgagor for the full amount due on the mortgage on the date of redemption whatever he may have himself paid to get it discharged or does he stands in the mortgagee’s shoe only to the extent of getting reimbursed from the co-mortgagors for their shares in the amount actually paid by him. In Ganeshi Lal’s case supra, the Supreme Court held: ‘Where one of the co-mortgagors redeems a mortgage over the property which belongs jointly to - 8 - himself and rest, equity as embodied in the doctrine of subrogation confers on him a right to reimburse himself for the amount spend in excess by him in the matter of redemption; he can call upon the co- mortgagors to contribute towards the excess which he has paid to the creditor or mortgagee is to perpetrate an in equity or injustice, as it means that the debtor who is in a position to pay and pays up can obtain an advantage for himself over the other joint debtors. Such a result would not be countenanced by equity. Hence such a co- mortgagor stands in the mortgagee’s shoes only to the extent of getting reimbursed from the co- mortgagors for their shares in the amount actually paid by him and not the full amount due on the mortgage on the date of redemption.’ 13. In other words, a redeeming mortgagor will be subrogated to the rights of the mortgagee only to the extent necessary for his own equitable protection. A non- redeeming mortgagor’s right to get his portion or share of the hypotheca on contribution to the redeeming co- mortgagor to the extent of his share of the mortgage debt is co-related right which accrues to the former and survives or - 9 - remains alive till the redeeming mortgagor has the right to recover the excess amount paid by him at the time of redeeming the mortgage. This right of non-redeeming mortgagor cannot thus possibly be subject to the overall period prescribed for the redemption of a mortgagee. 14. The sum and substance is that a redeeming co- mortgagor has a right of reimbursement from a non- redeeming mortgagor to the extent of the latter’s share in the mortgage money and the non-redeeming mortgagor can recover possession of his share of the hypotheca on payment to the redeeming co-mortgagor. 15. Thus, the conclusion is obvious. Applying the aforesaid ratio of the above mentioned ratio and principle of law laid down, I hold that the legal representatives of deceased Sandhya Devi are entitled to redeem and take possession of the entire suit land on the payment of mortgage money. To that extent, decree passed by the courts below is affirmed, however, the present appellants, who are non-redeeming mortgagors can recover the possession to the extent of their shares of the suit land on payment to the redeeming co-mortgagors i.e. now the legal representatives of deceased Sandhya Devi after the legal representatives of Sandhya Devi are able to get the - 10 - possession of the suit land. The non-redeeming mortgagors, i.e. the appellants herein shall be at liberty to file suit land for the recovery of suit to the extent of their share in accordance with law. 16. The substantial question of law framed above is accordingly answered, whereas, the substantial questions of law which were framed earlier at the time of the admission are held to be redundant. 17. Both the appeals are accordingly disposed of. Parties are left to bear their own costs. October 8, 2010. (Surinder Singh), (Pds) Judge.