N. G. SHELAT, B. G. THAKOR, J.

( 1 ) * * * *

( 2 ) TWO points arise to be considered in this appeal. The first is whether the trial Court was in error in holding that the plaintiff appellant was not entitled to claim the rights of the first mortgagee defendant No. 1 respondent No. 1 in respect of the suit property having regard to the provisions contained in sec. 92 of the Transfer of Property Act. The other point is whether the suit is barred by reason of the withdrawal of Civil Suit No. 15 of 1953 by the plaintiff having regard to the provisions contained in Order 23 rule 1 or under the provisions contained in Order 2 rule 2 clause (3) of the Civil Procedure Code as urged by the learned advocate for the respondents. In respect of other points on which findings have been recorded by the learned Judge it is conceded that they do not affect or bar the remedy sought for by the plaintiff in the suit and they do not therefore require to be considered.

( 3 ) THE contention in respect of the first point made out by Mr. Nanavati the learned advocate for the plaintiff appellant is that the plaintiff is one of the persons referred to in sec. 91 (a) of the Transfer of Property Act he having pre existing charge on the property and since he has paid off Rs. 21 500 in all in full satisfaction of the claim of the defendant No. 1 under his first mortgage deed Ex. 10 dated 12 2-46 in respect of the suit property he acquires the right to subrogate and gets all the rights of the first mortgagee defendant No. 1 under sec. 92 paragraph (1) of the Transfer of Property Act (hereinafter referred to as the Act ). According to him the learned Judge has not taken into account his having a pre-existing charge on the suit property arising out of his claims under the deeds Ex. 11 and 12 and that way his finding that his case was governed by paragraph (3) of sec. 92 of the Act was erroneous. This right is said to have been acquired on 12-8-52 when he paid off the balance of Rs. 8000/due to defendant No. 1. His alternative contention is that by reason of his having advanced the amount to defendant No. 3 under the deed Ex. 15 dated 12-5-52 out of which amount he paid off the dues of defendant No. 1 and later on even his having passed on his equity of redemption in his favour under a deed Ex. 16 dated 12-6-52 and possession of the property delivered to him it has to be assumed though no specific recital is there in any of these deeds that he agreed to his being entitled to claim benefits of the first mortgagee defendant No. 1 on redeeming the property which he has done on 12 8-52. He therefore subrogates to the claim under paragraph (3) of sec. 92 of the Act and get the rights of defendant No. 1 against the property in possession of defendant No. 2. In other words either under the first paragraph or third paragraph of sec. 92 of the Act he becomes entitled to be reimbursed by defendant No. 2 before he can validly become owner thereof by purchasing the same in Court auction. He takes subject to his claim which he is entitled to enforce against that property in his possession. On the other hand it was urged by Mr. Desai the learned advocate for defendant No. 2 that it is not enough that by merely having a pre existing interest or charge on that property and his having paid up the dues of the first mortgagee in full that he is entitled to claim subrogation under paragraph (1) of sec. 92 of the Act. He has further to show that not only he must have paid his own money for the protection of his right but that the payment was not made under any covenant with the mortgagor so as to say that he paid up the amount out of the mortgagors money. The test according to him was as to whose money he paid for redemption of the first mortgage. If it was mortgagors money in no case he can claim the right to subrogate under paragraph (1) of sec. 92 of the Transfer of Property Act. If it was out of mortgagers money that he paid under the covenant in the deed Ex. 15 he cannot be said

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