JUDGMENT

Bennet, J. - This is a second appeal by the representatives of the plaintiff against a decree of the lower Appellate Court dismissing the suit of the plaintiff. The facts which give rise to this case are as follows : Phul Singh owned certain zamindari property and made three mortgages as follows : (1) to Dina Nath, defendant 1 for Rs. 200 on 22nd December 1909, simple mortgage; (2) simple mortgage to Sukhdeo for Rupees 1025 on 13th August 1910. Of this Rs. 74 cash alone was paid and the balance which was for debts was not paid; and (3) usufructuary mortgage to Dina Nath, defendant 1, on 2nd August 1912, for Rs. 525. Out of this Dina Nath was to pay Rs. 93 to Sukhdeo to redeem the second mortgage which was the amount then outstanding on it.

2. The plaintiff had a simple money decree against Phul Singh and he caused the property of Phul Singh to be put up to auction salo and he purchased his equity of redemption. Subsequent to this defendants 2 to 8, second party, the successors of Sukhdeo got a decree No. 946 of 1922 on the second mortgage to Sukhdeo and applied for a final decree for sale. On 28th August 1926 the plaintiff paid the decretal amount Rs. 382-4.0. The plaintiff now claims that by paying off this decree he was subrogated to the position of the mortgagee, Sukhdeo, in the second mortgage and the plaintiff has now brought a suit on the second mortgage to recover the amount which he paid, Rs. 382-4.0 with interest now amounting to Rs. 657-4-0. The persons whom the plaintiff has sued are Dina Nath, defendant 1, first party, who is the usufructuary mortgagee in possession under the third mortgage, secondly, defendants second party who represent Sukhdeo. These persons naturally have no interest in the matter as the decree of Sukhdeo has been paid off in full. The defendants third party represent Phul Singh and Phul Singh also has no interest in the matter as his equity of redemption was sold in the simple money decree and purchased by the plaintiff. The only person now interested in the property among the defendants is defendant 1, Dina Nath, and he alone has filed a written statement. The trial Court decreed the suit of the plaintiff for Rs. 258. The plaintiff brought an appeal and defendant 1 filed a cross-objection and the point before the; Court below was

whether the plaintiff is entitled to bring the suit by paying the amount of the decree based on the second mortgage and can he get the property sold in this suit.

3. The Court below held that he, could not. The claim of learned counsel, Dr. Asthana, for the plaintiff is that by paying the decretal amount due to Sukhdeo under the second mortgage the plaintiff acquired the rights of Sukhdeo under the second mortgage. This claim is based on the provisions of Section 92, Para. 1, T.P. Act, which states. as follows:

Any of the persons referred to in Section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against-the mortgagor or any other mortgagee.

4. Now no ruling has been produced by learned Counsel in a parallel case. The rulings which have been produced fell under two heads. Firstly, there are a large number of rulings where it has been held that payment by a defendant of a mortgage charge may be set up as a shield as an equitable defence. Such a claim may be made by a person paying off a decree on a mortgage. This equitable defence has also been held good by their Lordships of the Privy Council in AIR 1932 99 (Privy Council) The second class of a case is a suit to enforce a mortgage charge by a person paying off the charge. Such a claim, in our opinion, cannot be made in equity but can only lie u/s 92, T.P. Act. If the plaintiff is entitled to bring the present suit, the plain, tiff must show that he does come u/s 92. The rulings which deal only with the right of an e