A mortgagee who makes a payment to protect the mortgaged property from destruction, forfeiture, or sale is entitled to be reimbursed by the mortgagor under Section 69 of the Contract Act.

Kanhaiya Singh, J.

1. In a suit to enforce a simple mortgage dated the 4th January, 1926, the plaintiff-respondents obtained a preliminary decree on the 7th August, 1935, followed by a final decree passed on the 27th October, 1938, which provided payment of the decretal amount in instalments, and it was stipulated that in the event of default of payment of any one instalment, the amount remaining outstanding would fall due and the mortgagee decree-holder will be entitled to realise that amount by sale of the mortgaged property. The final decree had not been satisfied in full even by March, 1954. The property mortgaged constituted an estate. The liability for payment of the revenue and cess for that estate lay on the mortgagors. They defaulted in payment of the revenue and cess. Accordingly, the plaintiff paid revenue and cess for the kist January 1953, March, 1953, June 1953, September, 1953, January 1954 and March 1954, with the result that by March 1934 he had paid in all Rs. 938-14-9 on account of revenue and cess. On the 2nd March, 1956, the plaintiff-respondents commenced the present action for recovery from the appellants-mortgagors Rs. 938-14-9 paid by them on account of revenue and cess and Rs. 288-8-0 by way of interest, in all Rs. 1227-6-9.

2. The defence of the appellants was two-fold; first, that this payment was gratuitous and voluntary, and it is, therefore, not recoverable from them, and the second that the mortgaged property had vested in the State of Bihar, and, therefore, the present suit was barred under Sec. 4 of the land Reforms Act.

3. Both the Courts negatived the defence, and granted the plaintiff a decree with this modification that the rate of interest was reduced from 12 per cent which the plaintiff had claimed to 9 per cent per annum. Now, the defendants have come up in second appeal.

4. The first contention raised by learned counsel on behalf of the appellants is that the payment made by the plaintiffs was gratuitous and voluntary and does not fall under Sec. 69 or 70 of the Contract Act, and accordingly the plaintiffs were not entitled to be reimbursed by the appellants. His submission is that when a mortgage decree had already been passed, the plaintiff-mortgagees cannot be said to have an interest in the mortgaged property, and accordingly they were not entitled to make any payment on account of the revenue and cess. In order to appreciate this argument, it will be necessary to state the legal position in this connection. It is true that after the mortgage has matured into a decree, the relationship of the mortgagor and mortgagee ceases to exist and is converted into a relationship of a decree-holder and a judgment-debtor. This is exactly what has been laid down by a Bench of the Madras High Court in the case of Thirukonda Ellarayan V/s. Nakonda Rangaswami Aiyar, AIR 1926 Mad 816 :

"The principle involved is that in all suits on mortgage which are successful the mortgage, so far as parties to the suit are concerned, is merged in the decree and the mortgagors rights are only exercisable under the decree and do not exist any longer outside the decree. The right to redeem, therefore, can be exercised only as provided under the decree and not outside the decree. It follows then, that, after a decree in a mortgage suit whatever the form of that decree whether for foreclosure, sale or redemption, the parties to the mortgage and to the suit and their legal representatives or assignees cannot maintain in future any separate suit or any claim arising out of the mortgage. The ratio of this case is that when a mortgagee has obtained a decree for sale, the mortgage as between himself and his mortgagor and all parties to the suit is merged in the, decree in the suit for sale. The same principle has been laid down by a Bench of the Allahabad High Court in the case of Gauri Sahai V/s. Ashfak Hussain, ILR 29 All 623. This case lays down that there can be in effect only one decree in a suit based upon th