1993 (1) TMI 317 - HC - Indian Laws

Summary

ISSUES PRESENTED and CONSIDERED

The core legal questions considered in this judgment are:

(1) Whether defendants 2, 4, and 6 to 8 have the right of subrogation.

(2) If they have such a right, whether they can enforce it in the final decree proceedings or if they must file a separate suit.

ISSUE-WISE DETAILED ANALYSIS

Issue 1: Right of Subrogation

The Court examined whether the defendants who paid the mortgage debt during the pendency of the final decree proceedings have the right of subrogation. The legal framework for subrogation in India is primarily governed by Section 92 of the Transfer of Property Act, which allows certain persons, including sureties, to be subrogated to the rights of the mortgagee upon redeeming the mortgage. Additionally, Section 140 of the Indian Contract Act provides that a surety, upon payment of the guaranteed debt, is invested with all the rights of the creditor against the principal debtor.

The Court found that defendants 2, 4, and 6 to 8, as sureties, paid the mortgage debt during the pendency of the final decree proceedings. This payment entitled them to the right of subrogation under Section 92 of the Transfer of Property Act. The Court referenced the Supreme Court's decision in The Bank of Bihar Ltd. v. Damodar Prasad, which supports the notion that a surety is subrogated to the creditor's rights upon payment of the debt.

The Court dismissed the appellants' argument that the right of subrogation is extinguished once the decree is satisfied, citing that the right of subrogation arises from the payment of the mortgage debt, not from the decree itself. The Court concluded that defendants 2, 4, and 6 to 8 have the right of subrogation.

Issue 2: Enforcement of Subrogation Right

The Court then considered whether the right of subrogation could be enforced in the ongoing final decree proceedings or required a separate suit. The appellants argued that once the decree is satisfied, it is exhausted, and there is nothing left to enforce in the final decree proceedings. They contended that the respondents should file a separate suit to enforce their subrogation rights.

The Court analyzed Order 22, Rule 10 of the CPC, which allows the continuation of a suit by a person to whom an interest has devolved during the pendency of the suit. The Court noted that the payment by the sureties during the pendency of the final decree proceedings constituted an assignment by operation of law, allowing them to continue the suit.

The Court distinguished the present case from precedents cited by the appellants, such as Gopi Narain Khanna v. Babu Bansidhar, by emphasizing that those cases involved different factual scenarios and legal contexts. The Court found that the sureties, having paid the mortgage debt, were entitled to be transposed as plaintiffs and continue the proceedings to enforce their subrogation rights.

SIGNIFICANT HOLDINGS

The Court held that defendants 2, 4, and 6 to 8 have the right of subrogation under Section 92 of the Transfer of Property Act and Section 140 of the Indian Contract Act. The Court concluded that this right could be enforced in the ongoing final decree proceedings without requiring a separate suit. The Court emphasized that the payment by the sureties during the pendency of the suit constituted an assignment by operation of law, allowing them to be transposed as plaintiffs.

The appeal was dismissed, and the order of the lower court allowing the transposition of defendants 2, 4, and 6 to 8 as plaintiffs was upheld.