A surety who pays the mortgage debt during the pendency of the suit is entitled to be subrogated to the rights of the creditor and can continue the suit in the place of the original plaintiff.

( 1 ) THIS appeal is preferred against the order dated 23-3-1990 passed on I. A. No. II by the Civil Judge, Sirsi in FDP No. 2/1987. By the said order the learned Civil Judge allowed the application at I. A. II permitting defendants 2, 4 and 6 to 8 to be transposed as plaintiffs in the place of original plaintiff viz. , the Corporation Bank.

( 2 ) THE facts which are relevant for the disposal of this appeal, briefly stated, are as under : the Corporation Bank having its Administrative Office at Mangalore and a Branch Office also at Sirsi had advanced a loan of Rs. 3,00,000/- to the instant appellant-1 Kadamba Sugar Industries Private Ltd. , in Bastigalli at Sirsi. The instant respondents and appellant-2 had stood as sureties and had guaranteed repayment of the said loan. All the assets of the Kadamba Sugar Industries Private Ltd. , including the machineries and immoveables belonging to Kadamba Industries were hypothecated and charged for the said debt and an equitable mortgage was also created by depositing the title deeds in respect of the land and buildings. It appears that the principal debtor and the sureties did not repay the loan in time with the result, the Corporation Bank filed a suit against Kadamba Sugar Industries (instant appellant 1) and all the sureties including the instant appellant 2, in O. S. No. 8/1981 in the Court of Civil Judge, Sirsi for the recovery of the amount towards the loan including the interest accrued thereon from time to time. The said suit at O. S. No. 8/1981 culminated in passing of a preliminary decree dated 28-6-1986. The decretal terms are as under : "plaintiff do recover Rs. 4,57,350. 85/- ps. with costs of Rs. 71,660. 50 ps. and future interest at the rate of 16. 50% p. a. from the date of suit till the date of payment from defendants-1 to 7. And Rs. 1,97,898. 50 ps with future interest at the rate of 17% p. a. from the date of suit till the date of realisation from defendants 1 to 8. Defendants are granted six months time to deposit the amount as aforesaid. In the case, the defendants fail to deposit the amount the plaintiff Bank is entitled to apply for final decree for the sale of hypothecated machineries shown in the Schedule A and immovable properties shown in Schedules C and D for realisation of the entire suit claim. Given under my hand and the seal of the Court this 28th day of June, 1980. " the properties which were hypothecated and mortgaged are shown in Schedules A, C and D appended thereto.

( 3 ) IT appears that the defendants did not pay the amount decreed by the Court during the stipulated time. The Corporation Bank therefore, filed the decree final proceedings at FDP No. 2/87. When this was so defendants 2, 4 and 6 to 8 (according to the case made out by them during the pendency of the said proceedings) negotiated with the Corporation Bank and persuaded the Corporation Bank to accept Rs. 7. 5 lakhs towards full satisfaction of the decree and in furtherance of such negotiation made the payment of the said amount to the Corporation Bank on 14-12-1988. It appears that on 31-7-1989 the learned Counsel for the plaintiff-Bank filed a memo in the Court stating that the matter was settled for Rs. 7. 5 lakhs and that accordingly, the said amount was paid by defendants 2, 4 and 6 to 8 and that, therefore, the decree was fully satisfied. At the same time an application at I. A. II was filed for defendants 2, 4 and 6 to 8 praying for the reliefs REFERRED TO above. The pith and substance of the application filed by the aforesaid persons at I. A. No. II before the Civil Judge is that they having paid the amount under the preliminary decree during the pendency of the proceedings for final decree, they are entitled to be subrogated or transposed as plaintiffs in the place of the Corporation Bank. The said application was purported to have been filed under Order 22, Rule 10, CPC. The said application was resisted by the instant appellants. In sum, it was contended by the