JUDGMENT - Patel, J.

(1) This is an appeal by the defendant against the decree of the Civil Judge, Senior Division, Poona, in a redemption suit.

(2) The facts are few and they are as follows:

The appellant before us is the Bank of Poona, which is now merged into Sangli Bank Ltd. Defendants Nos. 9 and 10 owned S. Nos. 93, 102 and 107 in Poona, near Bhamburda. They effected a mortgage in respect of these Survey Numbers in favour of the Bank of Poona of February 16, 1949. The mortgage deed is at Ex. 85/9. Thereafter defendants Nos. 9 and 10 sold 4 acres and 34 gunthas to the plaintiffs Navrajasthan Co-operative Housing Society Ltd. for a sum of Rs. 67,000/-. Out of this amount, the Society retained a sum of Rs. 16,500/- to be paid to the mortgagee, but which it did not pay. Thereafter in 1954, the bank instituted arbitration proceedings and ultimately the award was made a decree of the Court on August 17, 1954, in Suit No. 92 of 1954. In these proceedings the plaintiff-Society was not made a party. Only the mortgagors defendants Nos 9 and 10 were parties as defendants. Under this decree the Bank brought the property to sale and it purchased all the three survey numbers with the leave of the Court on October 16, 1969, for the amount then due. It appears that during the execution proceedings the Society appeared in Court and took time to make payment of the dues but did not make any payment. Eventually the sale came to be confirmed. Defendants 9 and 10 challenged the said order of confirmation in Appeal No. 48 of 1960, which was eventually dismissed on September 6, 1968. The Society then instituted the present suit for redemption.

(3) In the plaint, the plaintiff-Society alleged that it had purchased 4 acres and 3 gunthas of the land and that a redemption decree be made in its favour in respect of all the three numbers mentioned in the schedule. In this suit some of the members of the Society who had become owners of smaller plots made in these 4 acres and 34 gunthas were joined as party defendants, the main defendant being the Bank. The Bank contended that the Society was not entitled to redeem the whole of the mortgage property, but only the property that it had purchased on payment of proportionate amount of the mortgage dues. The learned trial Judge made a decree for redemption of the entire mortgage property. In the three survey numbers, by decree, dated September 26, 1962, By this appeal the Bank challenges the said decree.

(4) In order to appreciate the contentions raised and apparently accepted by the trial Judge, it is necessary to refer to the sale deed executed by defendants Nos. 9 and 10 in favour of the plaintiff-Society, which is at Ex. 92. The sale deed recites that 4 acres and 34 gunthas out of S. No. 93 was sold for a sum of Rs. 67, 500/- free from all encumbrances. To ensure payment of the mortgage dues Rs. 16,500/- were kept with the Society in order to be paid over to the mortgage. The terms agreed between them are provided in paragraph 8, which refers to the amount of consideration for the sale deed. Against item 16,500/- this appears.

"After making accounts of the deed of mortgage which we have executed to the Bank of Poona Ltd. on the date 16-2-1949 for Rs. 15,000/- the amount found due to the Bank to-day is Rs. 16,500/-. We have deducted the said amount from the amount of this sale-deed. So you should pay in full the amount due to the Bank on the mortgage deed dated 16-2-1949 and the interest and should take the mortgage deed of the bank satisfied. Today a larger amount is not due to the Bank. If a debt in excess of Rs, 16,500/- is found due, we shall pay it. And if the debt is found to be less you should pay back the balance to us. As we have accepted the liability of the Bank if any injury is caused to us and if we suffer any loss we will be entitled to recover the same from you.

The rest of the terms are not material, because they recite the making up of the consideration of Rs. 67,500/-

(5) In the Court below

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