NARAYANA SHENOI Vs. YESODABAI

JUDGEMENT

(1.) THE plaintiff appeals to this Court against the decree of the court below dated 5th March 1949 dismissing his suit (O. S. No. 877 of 1122) for redemption of a mortgage on the preliminary ground of its non-maintainability being a second suit for redemption after execution of the decree obtained by him in O. S. No. 212 of 1104 for redemption of the same mortgage was barred by limitation and the only question that arises is whether notwithstanding the institution of a suit and the passing of a decree for redemption the subsequent suit for redemption of the same mortgage is maintainable.

(2.) THE Transfer of Property Act, IV of 1882 (Central) is law in this State, its operation having been extended thereto by Central Act no. III of 1951 as from 1. 5. 1952. Until then the law of the erstwhile State of Travancore and Cochin governed the respective areas. THE Transfer of Property Act was not in the statute book of Travancore but most of its provisions were being followed as embodying general principles. THE same was the case in Cochin till the law was codified by the Cochin Transfer of Property Act XVII of 1111 which came into force on 1. 1. 1112. This case comes from the Travancore area and arose when the rights of parties were not regulated by Statute. Those rights fall to be adjudged on general principles independently of any technical statutory provision. THE inquiry has, therefore, to be pushed back and has to start from the pre-Transfer of Property Act, 1882, period to consider the law that then prevailed, follow its development and see whether the Transfer of Property Act made any difference. THEre was conflict of judicial opinion among the British indian High Courts as they were called. We may start with two cases which arose before the Act taking divergent views. I. L. R. 6 Madras 119 Sami Achari v. Somasundaram Achari and 7 Bombay 467 Ganansavant Balswant v. Narayanan Dhoud savant. THE Madras case was in favour of the maintainability of a second suit for redemption while the Bombay case took the opposite view. THE High Courts of allahabad and Calcutta followed Bombay and held that a second suit was not maintainable. THE ground of the Madras view was that in the absence of a provision in the decree set up as a bar to the second suit that the mortgagor would be foreclosed if he did not exercise his right of redemption his right to redeem is not lost because he omitted to make the payment as per the decree which was the condition of his recovering possession in the former proceedings and that so long as that right exists, a suit for redemption is competent. This was in general the view taken by the Madras High Court until the opposite was declared to be the right view by the Full Bench of that High Court in Vedapuratti v. Vallabha Viliya Raja I. L. R. 25 Madras 300. Ganansavant v. Narayanan, I. L. R. 7 Bombay 467 took the opposite view on the authority of Lockyer v. Ferryman, l. R. 2 A. C. 519 which held that a second suit for redemption was not maintainable on account of the rule of English Law that a decree for redemption on default of the decree-holder to pay money within the time fixed in the decree or if none be fixed within the time allowed by law for execution of the decree operates as a judgment for foreclosure. As a result of the conjoint operation of this rule and the rule of res judicata which debars the mortgagor from afterwards bringing a second suit for redeeming the same property the High court of Bombay held that a second suit for redemption was not maintainable. THE High Courts of Cochin and Travancore followed the Madras and the Bombay views in their earliest reported decisions in Krishnan v. Varunni (4 Select decisions 684) and Raman v. Kadiru (5 T. L. R. 30) respectively and each court maintained the view first taken, in later cases (See 5 Cochin 269, 9 Cochin 118,13 T. L. R. 109, 18 T. L. R. 76, 5 T. L. J. 5) and thereafter applying the principle of stare decisis each court stuck to its view without discussion. THE result was that the change of view in Madras did not affect the current of authorities in Cochin while it tended to confirm the view in Travancore. While matters stood thus the Privy Council in Raghunath v. Hansraj I. L. R. 56 allahabad 56; A. I. R. 1934 Privy Council 205 said the last word on the subject and held in favour of a second suit. THE following extract from the judgment of their Lordships contains the three points urged before them against the maintainability of a second suit and their Lordships' answers to them: "counsel for the appellants based his contention upon three grounds viz. (1) that the suit, though in form a redemption suit, was in reality an application to enforce the old decree of 25th September, 1896, that such a suit could not be maintained, and that execution of the old decree was barred by limitation: (2) that the decision in the former suit operated as res judicata, and that therefore S. 11, Civil P. C. prohibited the courts from trying the present suit: and (3) that no payment having been made under the old decree, the former suit stood dismissed on 15th November, 1896, with the result that the mortgagor's right to redeem became extinguished under s. 60 T. P. Act, 1882. THE respondents did not appear before their Lordship's board. In regard to the first point, it can only arise for consideration if the appellants fail to establish their third point, and their Lordships feel a difficulty in appreciating how it could then prevail, because if a second suit for redemption is, in the circumstances of the present case, properly maintainable, then the simple answer to the first point is that the present suit is a redemption suit, and is not an application to enforce the old decree. In regard to the second point, their Lordships are of opinion that no relevant question of res judicata here arises. THE issues decided in the former suit were (1)whether the mortgagors were then entitled to redeem; and (2) the amount then to be paid if redemption then took place. THE issues in the present suit are (1)whether the right to redeem now exists, and (2) the amount now to be paid if redemption now takes place. If it could be said that the old decree involved a decision that the mortgagor's right to redeem was extinguished, that matter would indeed be res judicata, but this very question of the meaning and effect of the old decree arises for consideration under the third point. To that extent the second and the third points overlap. It is sufficient to say in regard to the second point, that if the appellants fail to establish under their third point that the old decree extinguished the right to redeem, there is, in their Lordships' opinion, no ground for saying that the old decree operated by way of res judicata so as to prevent the Courts, under S. 11, Civil p. C. from trying the present suit. THE important question for their Lordships' consideration is the third point, the answer to which depends, in their view, upon a correct appreciation of the joint effect of the relevant sections of the Transfer of property Act, 1882, and the form of the old decree. It is to be noted that at the relevant date (1896) the rights of the mortgagor were governed by the Act as originally enacted; the sections hereinafter cited or referred to are those of the original enactment. Further it is to be observed that the rights of a mortgagor in that part of India from which this appeal comes are regulated by the provisions of the Act. It is impossible to say (as may be said under english Law) that the dismissal of a redemption action operates as a foreclosure, unless the justification of that statement is to be found in the language of the Act. " THEir Lordships after examining the three relevant sections of the Act, 60, 92 and 93, concluded that the prior decree which stated that in case of default by the plaintiff in payment his case will stand dismissed and which was relied upon as an order of the Court extinguishing the right of redemption under S. 60 "cannot properly be construed as doing that which it does not purport to do, viz. , as extinguishing the right to redeem". THE Cochin High Court relied upon the decision of the Privy Council as confirmatory of the view that they had always been taking (See 32 Cochin 79; 34 cochin 381 ). A submission was made for a reconsideration of their view before the Travancore High Court relying upon the ruling of the judicial Committee. THE learned judges answered that: "the British Indian High Courts have, therefore, to be constrained to take a view in conformity with that indicated in Regunath singh v. Mt. Hansraj. So far as this court is concerned the matter is different. THEre is no justification to change the current of decisions on the basis of the Privy Council ruling. " (1947 T. L. R. 533 ). To the same effect is 1948 T. L. R. 749. THEse are the two decisions on the strength of which the court below held against the maintainability of the second suit. In Subba Rao v. Raju (A. I. R. 1950 Federal court 1) the Federal Court said: "the right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage itself subsists. As held by the Privy Council in Reghunatha Singh's case, 61 I. A. 362 (A. I. R. (21)1934 P. C. 205) the right of redemption can be extinguished as provided in S. 60, T. P. Act, and when it is alleged to have been extinguished by a decree, the decree should run strictly in accordance with the form prescribed for the purpose. Unless the equity of redemption is so extinguished, a second suit for redemption by the mortgagor, if filed within the period of limitation, is not therefore barred. THE Board expressly held that if the appellants failed to establish that the old decree extinguished the right to redeem, there was no ground for saying that the old decree operated as res judicata and the courts were prevented from trying the second suit under S. 11, Civil P. C. THEy therefore held that the right to redeem was not extinguished by the procedural provisions contained in the Civil Procedure Code. " It was, therefore held that the right of redemption was not extinguished by the provisions contained in the Code of Civil Procedure.

(3.) QUITE recently Venkitarama Iyer, J. (as he then was)sitting with Rajamannar, C. J. in Ammenumma v. Chelampiriyarath (A. I. R. 1953 madras 32) (1952 (2) M. L. J. 421) considered this question and on an exhaustive review of the case law beginning from 6 Madras 199 and after reference to the above decisions of the Privy Council and the Federal Court as also of the relevant provisions of the Transfer of Property Act and the Code of Civil Procedure held that a second suit for redemption is maintainable and applying the same principles held that a second suit for sale will also lie and the mere existence of a prior decree granting the relief will not be a bar to a later suit. It would be supererogation for us to traverse the field in this judgment and it is sufficient to say that we respectfully follow the views of their lordships on the question that arises in this case, i. e. , the maintainability of a second suit for redemption. We did not hear arguments as regards the maintainability of a second suit for sale as that question does not fall to be decided and we, therefore, do not feel free to pronounce upon it. The above being our view, we had not to consider whether under Art. 374 (2) of the Constitution of India which provides that "judgments and orders of the Federal Court delivered or made before the commencement of this Constitution shall have the same force and effect as if they had been delivered or made by the Supreme court" the law declared by the Federal Court would bind all the courts in india as "the law declared by the Supreme Court" which according to art. 141 of the Constitution shall be binding on all courts within the territory of India as held in (1951) 2 M. L. J. 169. We may however mention that a. I. R. (1950) F. C. 1 was not cited before us as a binding authority but only as a persuasive precedent just like the decision of the Privy Council".