JUDGMENT Banerjee and Henderson, JJ. - In this appeal which arises out of a suit for money due upon a mortgage bond, three points have been raised for determination in the argument on behalf of the Plaintiff-Appellant,-- (i) whether the Court of appeal below was right in holding that a certain sum of money received by the mortgagee from some of the mortgagors should be applied to the satisfaction of the mortgage debt, merely because it was part of the surplus sale-proceeds of the share of a portion of the mortgaged property, namely, the share of the mortgagor Defendants, who paid the money, notwithstanding that the payment had been made by them in satisfaction of other debts due from them to the mortgagee; (ii) whether the Court of appeal below was right in holding, that certain rents received from the mostaur or lessee of the mortgagors should be applied in satisfaction of *he mortgage debt; and (iii) whether the Court of appeal below was right in not allowing interest at the stipulated rate up to the date of realization, or, at any rate, up to the date of payment fixed by the decree. 2. Upon the first point this is how the matter stands. A portion of the mortgaged property, namely, the share of Nand Kishore Singh and others, which had been previously mortgaged to a third party, was sold in execution of the mortgage decree obtained by him, the present Plaintiff not being a party to that suit, as the mortgage in his favour was executed after the institution of the prior mortgagee's suit; and out of the surplus sale proceeds, namely, Rs. 2,395, a sum of Rs. 1,318 was paid by Nand Kishore Singh and others to the Plaintiff in satisfaction of another debt due to him. 2,395, a sum of Rs. 1,318 was paid by Nand Kishore Singh and others to the Plaintiff in satisfaction of another debt due to him. This payment the learned Judge in the Court below has held should be applied in satisfaction of the mortgage debt; and the main ground of his decision is that Section 97 of the Transfer of Property Act makes it imperative that surplus sale proceeds should be paid to any person proving himself interested in the property sold, that is, to any subsequent mortgagees, if there be any; and that being so, the Plaintiff was entitled to apply this sum in satisfaction of the mortgage debt and if he has not chosen to apply it in that way, he must be compelled to do so. 3. The learned vakil for the Plaintiff-Appellant contends that this view of the law is wrong. In the first place it is argued that Section 97 of the Transfer of Property Act has no application to this case, as that section, as the context shows, applies only to cases u/s 96, that is to cases in" which the property sold is subject to a prior mortgage, which was not the case here. 4. On the other hand, the learned vakil for the Respondents, the Defendants Nos. 8 to 10 who are the contesting Defendants, so far as this question is concerned, relies upon the case of Padmanabh Bombshenvi v. Khemu Komar Naik ILR (1893) Bom. 684, as authority for holding that Section 97 of the Transfer of Property Act may hare application to a case like this. But be that as it may, Section 295 of the Code of Civil Procedure, proviso (c), Clause (3), would show that the Plaintiff was entitled to claim the surplus sale proceeds in, satisfaction of the mortgage debt due to him and it is not disputed that he had that right. The question is whether, although he had that right, he was under an obligation to the Defendants Nos. 8 to 10, or any of the co-mortgagors to apply for payment of the money to him and appropriate the surplus sale-proceeds in satisfaction of the mortgage debt. The question is whether, although he had that right, he was under an obligation to the Defendants Nos. 8 to 10, or any of the co-mortgagors to apply for payment of the money to him and appropriate the surplus sale-proceeds in satisfaction of the mortgage debt. If he was not under any legal obligation to do so, although according to the highest moral standard he ought to have done so, it could not be said that the money should be applied to the satisfaction of the mortgage debt notwithstanding that it has already been appropriated in some other way. The only ground upon which it could be said that he was bound to apply for the money and to appropriate it is satisfaction of the mortgage debt was that he had the right and that his not exercising the right might work to the prejudice of the co-mortgagors. But on the other hand if the Respondent's contentions be given effect to, it might work to the prejudice of the mortgagors, out of the sale proceeds of whose property the payment is made and might give their co-mortgagors an undue advantage; for the surplus may be more than their share of the mortgage debt and may exceed the whole of the mortgage debt itself, in which case the entire mortgage debt may be paid out of the surplus proceeds of the other mortgagors, the objecting co-mortgagors not having to pay a single pice. It may be said in answer that they would be liable in a suit for contribution by their co-mortgagors. But so may it be said, if the objecting co-mortgagors had not obtained any deduction of the mortgage debt out of the surplus sale-proceeds of their co-mortgagor's property, they may also obtain contribution from, the latter. According to the law of this country, "Where two or more persons have made a joint promise, a release of one of such joint promisors by the promisee does not discharge the other joint promisor or joint promisors; neither does it free the joint promisor so released from responsibility to other joint promisor or promisors" (Section 44 of the Indian Contract Act). If the release of one of several joint promisors does not affect the rights of the promisee as against the other promisors, the qualified release of a part of the mortgage security in favour of some of several joint mortgagors, resulting from the mortgagee not seeking to enforce his right as against any surplus sale-proceeds of such part when sold in satisfaction of a prior mortgage, ought not to affect the mortgagee's right. 5. Moreover, the observations of Vice-Chancellor Knight Bruce in Johnson v. Bourne (1843) 2 Y. and C. Ch. 268, 277, go to show that it is open to the mortgagee to forego his security if he has confidence in his debtor. Then, again, it should be observed that if any such obligation in the mortgagee, as the Respondent contends for, were to be inferred from the existence of his right to claim the surplus sale-proceeds, it would relate to the whole of the available surplus sale-proceeds and not merely to the portion that may come to his hand, to which the Court of appeal below thinks it ought to be limited. 6. If there be any hardship to any of the co-mortgagors, it is always open to them, when entering into the mortgage contract, to insert a stipulation that the security, or its equivalent in money, if it should be converted into money by any enforced sale, should be primarily answerable for the mortgage debt and that their personal liability should arise only in the event of the security, or its equivalent proving insufficient. There is no such stipulation in the mortgage deed in this case. 7. For all these reasons we are of opinion that the rule of law laid by the learned District Judge as the basis of his judgment, namely, that the moneys received by the mortgagee from certain of the mortgagors out of the surplus sale-proceeds of their share of the mortgaged property should be appropriated to the satisfaction of the mortgage debt merely because it was part of such surplus, notwithstanding that it had been paid in satisfaction of other debts, cannot be accepted as correct. But this does not dispose of the question. It remains to be considered whether the amount received had been received by the mortgagee by means of or by virtue of the security. But this does not dispose of the question. It remains to be considered whether the amount received had been received by the mortgagee by means of or by virtue of the security. If it was so received, it should be appropriated to the satisfaction of the mortgage debt. This is the rule laid down in the case of Johnson v. Bourne (1843) 2 Y. and C. Ch. 268, just referred to and it is in our opinion a just and equitable rule which ought to be followed. 8. The question remains then, was the sum of Rs. 1,318 received by means of or by virtue of the security? Upon this point the first Court in its judgment says at page 33 of the paper-book: "On the 4th June 1897, the Defendants Nos. 8 to 10 made a petition to this Court stating that the Plaintiff, in collusion with the Defendants Nand Kishore Chowdhry and others, whose share was so sold, was not withdrawing that sum in part satisfaction of his dues under the bond (Exhibit I in suit); that an injunction should be issued against those Defendants restraining those Defendants from withdrawing that amount; the Plaintiff should be required to take out that sum and a robokari should be sent to that Court not to pay out that sum to the Defendants. That petition was shown to the Plaintiff's pleader, who wrote the word 'object' on the petition. I fixed the 7th June for hearing that petition. That petition was shown to the Plaintiff's pleader, who wrote the word 'object' on the petition. I fixed the 7th June for hearing that petition. On 5th June, however, those Defendants applied through the Plaintiff's mukhtear who is conducting the suit on his behalf to withdraw the money and the money was withdrawn and it was wholly or in part made over to the Plaintiff who professes to have received it in satisfaction of another subsequent debt due to him from them." And this the Subordinate Judge characterises as "a piece of nasty dodge of the Plaintiff." Now it should be borne in mind that the present suit was instituted on the 3rd of February 1897 and the application for payment of the money was made on the 5th of June following, through the Plaintiff's mukhtear who was conducting the present suit; and if the money was paid in these circumstances upon an application being made by the Plaintiff's mukhtear, it would follow that the money was received by virtue of the security and the case will come within the rule laid down in Johnson v. Bourne (1843) 2 Y. and C. Ch. 268 and the appropriation in part satisfaction of the security would be right. Upon this point, however, the Lower Appellate Court has neither expressly affirmed nor expressly negatived the finding of the first Court. What the learned District Judge in the Court of appeal below says is this:--" Money was due to him (the Plaintiff) from the proprietors of the share sold on a simple money bond. He allowed those persons to take out the sale proceeds and then accepted from them Rs. 1,318-14 in satisfaction of that debt. The Subordinate Judge stigmatizes this conduct as 'atrocious' and 'a nasty dodge,' and though perhaps the terms applied are a little too forcible, there can lie no doubt that the Plaintiff allowed the sale-proceeds to be with drawn for his own advantage." 9. The learned vakil for the Respondent contends that this negatives the first Court's finding. We are not prepared to accept this view as correct. It is true that the District Judge tones down the stringency of the remark as to the Plaintiff's conduct, but that is done in a very qualified way. The learned vakil for the Respondent contends that this negatives the first Court's finding. We are not prepared to accept this view as correct. It is true that the District Judge tones down the stringency of the remark as to the Plaintiff's conduct, but that is done in a very qualified way. The learned Judge merely says that the strictures are "a little too forcible." That being so, we think that the case must go back to the Lower Appellate Court in order that it may determine whether the finding of the first Court upon this point in the passage of its judgment quoted above is correct. If it is, the conclusion arrived at by the Lower Appellate Court will stand. If it is not, the deduction of Rs. 1,318-14 allowed will have to be disallowed. 10. The second point as was practically conceded is concluded by the finding of fact arrived at by the Lower Appellate Court. 11. As to the third point the learned pleader for the Respondent very properly conceded that upon the authority of the case of Rameswar Koer v. Mahomed Mehdi Hossein Khan ILR (1898) Calc. 39 : L.R. 25 IndAp 179 and the case of the Maharaja of Bhartpur v. Rani Kanno Dei ILR (1900) All. 181 : L.R. 28 IndAp 35, interest must be allowed at the stipulated rate up to the date of realization; but he contended that as the first Court did not allow that and there was no appeal against the decree of the first Court on that point by the Plaintiff, it was not open to the Plaintiff to raise that question now. That no doubt is so, but as the decree of the Lower Appellate Court must, upon the first ground taken in this appeal, be set aside and the case sent back to that Court and a new decree will have to be made by the Lower Appellate Court after the remand; if that decree is not a mere re-affirmance of the decree already made, but is to be a different decree by reason of the disallowance of the deduction of Rs. 1,318, in that case interest will have to he allowed at that stipulated rate up to the date of realization. 12. 1,318, in that case interest will have to he allowed at that stipulated rate up to the date of realization. 12. The decree of the Lower Appellate Court is accordingly set aside and the case sent hack to that Court to he disposed of with reference to the directions contained in this judgment. Costs will abide the result.