The main legal point established in the judgment is that the starting point of limitation for a contribution by a co-mortgagor is the date on which he pays off the mortgage-debt and not the date on which the debt fell due.

Venkataramaiya, C.J.—This appeal has been referred to a Full Bench by the Division Bench before which it was posted for hearing as doubt was felt about the correctness of the view expressed in 47 Mys HCR 337 (A),. on the question of limitation. It was held in that case

"if therefore at the time when the puisne mortgagee sues to enforce the first mortgage by virtue of subrogation a suit by the first mortgagee is barred by time, the puisne mortgagee's suit is equally barred by time. This is the position which is accepted by the Calcutta, Madras and Patna rulings ..... Limitation counts from the date on which the money under the first mortgage became due and not from the date on which the subsequent mortgagee paid it off whether the money paid was still due under the mortgage or under a decree obtained on that mortgage".

Applying this principle, the lower Court has dismissed a suit filed by a person in the position of a co-mortgagor for recovery of amounts paid by him in excess of his liability as the interval between the due date for payment under the mort.-gage deed and the suit was more than 12 years although the suit was filed within that period from the date of payment.

2. The material facts either admitted or proved are, that immovable property described in Schedule B of the plaint was hypothecated by defendant 3 in favour of defendants 1 and 2 under a registered deed dated 7-6-1927, the plaintiff who was subsequently adopted as a son by defendant 3 filed a suit against him for partition of the family properties and in execution of the decree passed therein, the portion thereof described in the A schedule was allotted to plaintiff and the C schedule to defendant 3.

3. Representatives of the mortgages viz., defendants 1 and 2 sued the plaintiff and defendant 3 in O. S. 50/34-35 on the file of the Subordinate Judge, Shimoga, for recovery of the mortgage-debt. The suit finally came to an end by a decision of the High Court in R. A. No. 95/36-37 and to avert the sale of the mortgaged property for realisation of the decree debt, the plaintiff made payments from time to time between 1944 and 1948 in full satisfaction of the decree. The present suit was instituted, on 21-1-1949 for recovery of Rs. 4306-10-0 by sale of C schedule property, on the ground of its being subject to liability to that extent.

4. Several issues were framed in the case and the findings on these are all in plaintiff's favour. There is no dispute about the correctness of the amount or its being a charge on the C schedule property. The suit has been dismissed on the sole ground of being barred by time. The question of limitation, on the determination of which the decision depends, is not raised in issue and the omission of this is regrettable but not material as both parties have directed their attention to it as the lower Court has given consideration to it.

5. It is conceded that Article 132, Limitation Act governs the case, put the controversy is about the starting point, the date from which time is to run. If it is the date of the mortgage as considered by the lower Court, the dismissal of the suit is justified as it was filed beyond 12 years prescribed by the Article.

6. The lower Court (SIC) relying on 47 Mys HCR 337 (A), has failed to notice the distinguishing features of a claim of a co-mortgagor in comparison with that of a puisne mortgagee with which that case was concerned and has overlooked decisions relating to the time available to a co-mortgagor for enforcing his right.

7. The view that the period is to be reckoned from the date of mortgage when the suit is by the puisne mortgagee for the amount paid towards an earlier mortgage is based on the consideration that as a result of such payment the puisne mortgagee is an assignee of the mortgage and as such bound by its terms and conditions. A co-mortgagor cannot be said to be in an exactly identical position.

8. The discharge of the mortgage does not confer on him all the rights of the mortgagee a