ALEXANDER Vs. KOCHU CHANDA PILLAI

JUDGEMENT

(1.) The Courts below were perfectly right in holding that the suit is not maintainable as it is a second suit for recovery of mortgage money. For recovery of a part of the mortgage amount, Ext. 1 suit was filed and the present plaintiff was one of the defendants in that suit. He did not get himself transposed as a coplaintiff in that suit or ask for a settlement of all accounts and payment of the portion of the mortgage amount due to him. It has been held in Kunjan v. Narayanan Nair (18 TLJ 12) that where the severance of interest between the mortgagees has been effected without the consent, expressed or implied, of the mortgagor, the remedy of one of the mortgagees is to sue for the whole of the mortgage amount with the consent of the comortgagee, and that if such consent cannot be obtained, his remedy is to add in that suit the comortgagee as a defendant and to seek for the proper mortgage decree which would provide for all the accounts and payments. There is absolutely no suggestion in this case that the severance of the interest between the plaintiff in Ext. 1 suit and the assignor of the present plaintiff was effected with the consent of the mortgagor expressed or implied. The decision relied upon by the respondent's counsel, viz., ILR 39 Madras 17 and AIR 1941 Lahore 337 are not applicable to the facts of this case. The severance of interest was not effected in this case with the consent of the mortgagor or by decree of court.

(2.) In these circumstance it has to be held that one debt creates but one single indivisible liability and that there is only one single cause of action on the mortgage document. The mortgagor ought not to be harassed more than once for the mortgage debt and multiplicity of suits in respect of the one cause of action against him cannot be allowed. The second appeal is therefore dismissed as groundless. Only one set of costs is allowed to the respondents who have appeared in this court. They will share the same equally.