The enforcement of a claim under a charge cannot be affected by the question of notice, and the proper remedy for a person who has discharged a prior decree is to institute a fresh suit on the right acquired by paying off the decree.

Madhavan Nair, J.

1. 3rd defendant is the appellant. This appeal arises out of a suit instituted by the plaintiff for the recovery of Rs. 8,140 being the balance due on a registered mortgage bond, Exhibit A, dated 28th July, 1915, executed by the late Anantharatnam Iyer, father of defendants 1 and 2, in favour of the plaintiff for Rs. 5,000 payable with interest. The plaintiff has been given a decree.

2. In A.S. No. 111 of 1912 on the file of the High Court of Madras, K. V. Rangaswami Iyengar and K. V. Srinivasa Iyengar obtained a decree against Anantharatnam Iyer for Rs. 30,000 together with interest. Under this decree a charge in their favour was created over the suit properties and the amount was made payable within five years from the date of the decree. It was also stated in the decree that if payment was not made in accordance with the decree the appellants will be at liberty to realise the amount by executing the decree. This decree is Exhibit I and it is dated 22nd July, 1914. The exact terms of the decree with which we are concerned in this appeal are as follows:

That the plaintiff do pay Rs. 30,000 to the defendants with interest at 9 per cent, per annum from this date, the said amount of principal and interest being a charge on the suit properties more particularly set forth in the schedule hereto ; that the plaintiff do pay the interest above provided every year on or before the 30th of July beginning with 30th of July, 1915 and do pay the principal amount of Rs. 30,000 within 5 years from this date provided that if in any year default is made in the payment of interest as stated above, the principal shall become payable immediately on such default ; that on plaintiffs failure to pay in accordance with Clause (2) above, the defendants be at liberty to realise the amount due to them as per the above clauses by executing this decree as a decree for sale of the suit properties.

3. On the 28th July, 1915, the suit mortgage, Exhibit A, already referred to, was executed by Anantharatnam Iyer in favour of the plaintiff. In that document, amongst other things, it was stated by the mortgagor that there is no encumbrance whatever touching the said properties. I have executed this bond by declaring and making you believe that the aforesaid properties have not been subject to any kind of encumbrance whatever prior to this.

4. On 21st September, 1919, Anantharatnam Iyer executed a mortgage of the suit properties and other properties, Exhibit II, in favour of the 3rd defendant for a sum of Rs. 37,500. As will appear from this document, one of the items of consideration was a sum of Rs. 33,075, the amount required for the discharge of the decree in A. S. No. 111 of 1912 on the file of the High Court obtained by K. V. Rangaswami Iyengar and another against Anantharatnam Iyer. It is admitted that this amount was deposited in Court and the decree in A.S. No. 111 of 1912 was discharged. In Exhibit II amongst other things it was stated that this hypothecation bond alone shall have a prior claim to the said properties even though there are two hypothecations effected in respect of the said properties etc.

5. In the suit, the 3rd defendant contended that he is entitled to priority by subrogation over the plaintiffs mortgage to the extent of Rs. 33,075 with interest thereon made payable out of the consideration of Exhibit II in discharge of the decree Exhibit I, which was paid in full satisfaction of that decree.

6. The learned Judge expressed the opinion that the 3rd defendants right of subrogation is undeniable; but he held that effect could not be given to that right as Exhibit I created only a charge and the plaintiff had no notice of that charge. The conclusion of the learned Judge may be stated in his own words. After saying that the right to subrogation is undeniable he stated thus:

It is again urged on behalf of the plaintiff that Exhibit I creates only a charge, that she had no notice of the charge, that the charge does not invo