Surety subrogation in mortgage proceedings can be enforced in pending final decree proceedings through transposition.

A surety who pays a mortgage decretal amount after a preliminary decree but before the final decree acquires subrogation to the creditor's rights, because payment by the surety transfers the creditor's position by operation of law. That right can be worked out in the pending mortgage final decree proceedings, since the suit remains pending until final decree and the Court may permit transposition to avoid multiplicity of proceedings. A separate suit is not required on these facts.

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Issues: (i) Whether the sureties who paid the decretal amount during the pendency of the mortgage final decree proceedings acquired the right of subrogation; (ii) Whether such right could be enforced in the pending final decree proceedings by transposition as plaintiffs, or only by a separate suit.

Issue (i): Whether the sureties who paid the decretal amount during the pendency of the mortgage final decree proceedings acquired the right of subrogation.

Analysis: The payment was made by sureties who had guaranteed the mortgage loan, after the preliminary decree and before completion of the mortgage proceedings. The governing provisions recognised legal subrogation for a surety or other person entitled to redeem, and the surety's independent right under the Contract Act also vested the creditor's rights in the surety on payment. The fact that the payment was made after the preliminary decree did not destroy the right of subrogation.

Conclusion: The sureties acquired the right of subrogation.

Issue (ii): Whether such right could be enforced in the pending final decree proceedings by transposition as plaintiffs, or only by a separate suit.

Analysis: A mortgage suit remains pending until the final decree is passed. Since the sureties paid the amount while the proceedings were still pending, their interest devolved during pendency and the case fell within the scope of continuation of proceedings by a transferee or assignee with the leave of the Court. In the setting of a preliminary mortgage decree that had not yet culminated in a final decree, the sureties could be treated as acquiring the creditor's rights by operation of law, and the Court could permit their transposition to avoid multiplicity of proceedings.

Conclusion: The right could be enforced in the pending final decree proceedings by transposition as plaintiffs.

Final Conclusion: The order allowing transposition was upheld, and the appeal failed.

Ratio Decidendi: Where a surety redeems a mortgage debt after a preliminary decree but before the final decree, the surety is subrogated to the creditor's rights, and the pending mortgage proceedings may be continued in the surety's favour with leave of the Court rather than requiring a separate suit.

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