JUDGMENT : SATHISH NINAN, J. 1. The suit for money, was decreed by the trial court. RFA 57/2015 is by the first defendant challenging the decree. The second defendant had remained ex parte. The applications filed by him seeking to set aside the ex parte decree on condonation of delay, were dismissed, against which he is in appeal in FAO 61/2016. 2. An extent of 37 cents of property belonged to the first defendant. As per Ext.A2 sale deed dated 28.09.2000 he conveyed 20 cents therefrom, to the plaintiff. Thereafter, he conveyed 15 cents of property to the second defendant. According to the plaintiff, though there was a subsisting mortgage over the entire property, the assignments were made by the first defendant without disclosing the same. The Bank initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (for short “the SARFAESI Act”) against the mortgaged property. Thereupon the plaintiffs approached this Court in W.P.(C) No.72/2009. Therein the plaintiffs sought permission to wipe off the liability. As per Ext.A13 judgment this Court granted permission to the plaintiff. Accordingly the liability was settled. The remaining two cents of property out of the 37 cents was also purchased by the plaintiffs. The suit is filed for realisation of the amount paid to the redeemed mortgage. 3. The first defendant contended that the subsistence of the mortgage was not suppressed by him. It was contended that the payment made by the plaintiffs was on their own volition. The fact that the plaintiffs had settled the liability with the Bank was admitted. The plaint claim was denied. 4. The trial court held that the defendants are jointly and severally liable for the plaint claim. 5. We have heard learned counsel Sri.M.P.Ashok Kumar and Smt.Celine Joseph on behalf of the respective appellants, and Sri.Alias M. Cherian on behalf of the respondent. 6. The points that arise for determination in these appeals are:- (i) Is the plaintiff entitled to realise the mortgage liability that existed over the property, from the first defendant ? (ii) Is the second defendant liable for any part of the mortgage liability ? (iii) Is the application to set aside the ex parte decree filed by the second defendant liable to be allowed ? 7. The following aspects are not in dispute :- (a) 37 cents of property belonged to first defendant. (ii) Is the second defendant liable for any part of the mortgage liability ? (iii) Is the application to set aside the ex parte decree filed by the second defendant liable to be allowed ? 7. The following aspects are not in dispute :- (a) 37 cents of property belonged to first defendant. (b) 20 cents therefrom was conveyed to the plaintiffs. (c) 15 cents was conveyed to the second defendant. (d) That there was a subsisting mortgage over the entire property. (e) The Bank had initiated SARFAESI proceedings. (f) Plaintiffs filed W.P.(C) No.72/2009 and this Court permitted the plaintiffs to clear the liability. (g) The plaintiffs wiped off the liability and redeemed mortgage. Ext.A13 judgment of this Court in W.P.(C) No.72/2009 indicates that the plaintiffs were unaware of the subsisting mortgage over the property. There is no material to come to a different finding. As is evident from Ext.A13 judgment in the writ petition, the liability of the first defendant, who was the third respondent in the writ petition, to pay the liability to the Bank, was not disputed. Further, the liability of the first defendant to reimburse the plaintiffs was also not disputed. In Ext.A13 judgment it has been stated thus :- “The counsel for the third respondent/principal debtor also submits before this Court that the petitioner can very well claim the due amount from the third respondent after satisfying the loan transaction as above.” Thereafter the liability was satisfied by the plaintiffs and the present suit was for realisation of such amount. Thus, the contention of the first defendant that he has no liability to reimburse the plaintiff, is without any basis and was rightly negatived by the trial court. 8. The first defendant has a contention that under Ext.B1 agreement the plaintiffs had agreed that the sale consideration for Ext.A2 sale was not as mentioned in Ext.A2 but that a further amount of Rs.1,50,000/- was payable, which was reserved to be paid towards the Bank’s liability. Therefore the plaintiffs were liable to pay such amount to the Bank, it is claimed. In the light of Section 92 of the Evidence Act such a contention is not open for the first defendant. That apart, there is no evidence to substantiate the claim. 9. With regard to the claim as against the second defendant, he remained ex parte before the trial court. In the light of Section 92 of the Evidence Act such a contention is not open for the first defendant. That apart, there is no evidence to substantiate the claim. 9. With regard to the claim as against the second defendant, he remained ex parte before the trial court. Seeking to set aside the ex parte decree, he filed an application along with a petition to condone the delay of 230 days. The contention was that he had entrusted the first defendant to prosecute the case, which the first defendant failed to do effectively. The trial court noticed that earlier also an ex parte decree was passed in the suit which was later set aside. According to the second defendant, he had faith in the first defendant and hence he did not personally follow it up. If that is his case, then his remedy is as against the first defendant. There is no justification for him having not enquired with the counsel with regard to the fate of the case especially when, even on a prior occasion he had suffered an ex parte decree which was later set aside. He should have been vigilant in prosecuting his case especially in the light of the earlier ex parte decree. There is no proper explanation for the condonation of delay of 230 days in seeking to set aside the ex parte decree. We concur with the trial court in having declined to condone the delay and to set aside the ex parte decree against him. 10. Now coming to the claim as against the second defendant, the trial court has made him jointly and severally liable for the entire claim. As was noticed earlier, from out of the total extent of 37 cents the second defendant had purchased only an extent of 15 cents. The plaintiffs having redeemed the mortgage over the entire 37 cents, the liability of the second defendant is only with regard to the proportionate share of the mortgage money reckoning with the extent belonging to him. This is in accordance with Section 82 of the Transfer of Property Act which provides for rateable contribution by the holders of different shares of the mortgaged property. The liability of the second defendant for the proportionate liability is beyond challenge. 11. This is in accordance with Section 82 of the Transfer of Property Act which provides for rateable contribution by the holders of different shares of the mortgaged property. The liability of the second defendant for the proportionate liability is beyond challenge. 11. Though the second defendant had a case that the plaintiff did not have the obligation to settle the liability with the Bank and redeem the property, the said argument hardly has any force. It is undisputed that in enforcement of the mortgaged liability the Bank had initiated SARFAESI proceedings and it is on the teeth of such proceedings that the plaintiffs were compelled to redeem the mortgage over the property. There could not be any partial redemption of his share alone [See: Chhaganlal Keshavlal Mehta v Patel Narandas Haribhai, AIR 1982 SC 121 , Madhavan Nair v. Ramankutty Menon, AIR 1994 Ker 75 ] . The payment made by the plaintiffs cannot be said to be a voluntary and gratuitous payment. It was under the threat of sale of the property and enforcement of the mortgage liability that the plaintiffs were compelled to wipe off the liability. Further, as was noticed earlier such payment was with due sanction by this Court as per Ext.A13 judgment. Suffice to hold that the second defendant is liable for the proportionate liability over the property. 12. Though as per the impugned judgment a joint and several decree has been passed as against both the defendants, the liability of the second defendant can only be for the proportionate mortgage money, with reference to the extent of property held by him. The decree and judgment of the trial court is liable to be modified to the above extent in favour of the second defendant. 13. Though the learned counsel for the second defendant would argue that there cannot be a charge over his property for the liability, the said argument is without any merit. Section 82 of the TP Act specifically attaches the liability over the property. Therefore, the portion of the property purchased by him from the first defendant will be liable for its proportionate share of the liability. 14. Now coming to the issue of apportionment, we deem it appropriate to apportion the liability in the following manner: (a) The value of 20 cents of land has been shown as ? 2,00,000/-. Therefore, the portion of the property purchased by him from the first defendant will be liable for its proportionate share of the liability. 14. Now coming to the issue of apportionment, we deem it appropriate to apportion the liability in the following manner: (a) The value of 20 cents of land has been shown as ? 2,00,000/-. (b) Since the title deed for the remaining 2 cents was created subsequent to the dispute, it would be appropriate to adopt the same rate of valuation, i.e., ? 10,000/- per cent, rather than relying on the consideration mentioned in the later deed. (c) Accordingly, the value of 22 cents is assessed at ? 2,20,000/-. (d) The value of the building situated therein is ? 2,90,000/-. (e) Thus, the total value of the holding of the first party (22 cents with building) is ? 5,10,000/-. (f) As regards the other holding (15 cents), though the deed of sale has not been produced, since the mortgage was created over the entirety, the same centage rate of ? 10,000/- is to be adopted. Hence, the value of 15 cents is taken as ? 1,50,000/-. (g) The ratio of valuation, therefore, between the two holdings is ? 5,10,000/- : ? 1,50,000/-, i.e., 51 : 15. (h) Apportioning the total liability of ? 9,49,216/- in the above ratio, the liability of the holder of 22 cents with building is ? 7,33,485/-, and the liability of the holder of 15 cents is ? 2,15,731/-. The liability of the latter shall thus be ? 2,15,731/-, together with interest. (i) The first defendant is liable for the entire claim. 15. With regard to the rate of interest, the trial court has granted pendente lite interest at 12% and after decree at 6%. Considering the prevalent rate of interest in Banking transactions, we are of the opinion that grant of interest from date of suit till decree at 9% and thereafter at 6% is just and reasonable. In the result, RFA 57 of 2015 will stand allowed. The rate of interest granted at 12% from date of suit till decree will stand refixed at 9%. The decree against the second defendant will stand confined for an amount of Rs.? 2,15,731/- with interest as ordered by the trial court to the extent modified by this judgment. In all other respects the decree and judgment of the trial court will stand affirmed. The decree against the second defendant will stand confined for an amount of Rs.? 2,15,731/- with interest as ordered by the trial court to the extent modified by this judgment. In all other respects the decree and judgment of the trial court will stand affirmed. FAO 61 of 2016 will stand dismissed.