ARUNACHALAM PILLAI Vs. M VELAMMA

JUDGEMENT

(1.) THE plaintiff in a suit for recovery of mortgage money by sale of the mortgaged property, has preferred this second appeal, the Courts below having concurred in dismissing his suit as barred by limitation and barred under O. 2 rule 2 C. P. C.

(2.) THE material facts now beyond controversy may be briefly set out. Defendants 2 to 4 in the suit mortgaged with possession the property described as item on eof the plaint schedule under Ex. A 2 dated 23-8-1120. M. E. for 3000 fanams. The second item of the plaint schedule was given as an additional security for the mortgage amount. On the same date, the mortgaged property was taken back on lease, at the rate of Rs. 3-30 per mensem and the mortgagors defendants 2 to 4 continued in possession of the property. On the failure of the defendants to pay rents accrued the plaintiff filed a suit O. S. 720 of 1121 on the file of the Additional district Munsif Court. Nagercoil, for the arrears of rent accrued till then and obtained a decree. The mortgagors then brought about an arrangement for the discharge of the mortgage Ex. A 2 and satisfaction of the decree in O. S. 720 of 1121. on 18-5-1122 they executed the mortgage Ex. A 3 dated 18-5-1122, in favour of the first defendant reserving the amounts due under the mortgage Ex. A 2 and the decree in O. S. 720 of 1121 with him for their discharge. On the same date, the first defendant's sister on her own behalf and on behalf of the first defendant who was then a minor for the moneys reserved under Ex. A 3 executed a conveyance of another property of their own, by Ex. A 6 in discharge of the amounts due to the plaintiff under the aforesaid mortgage and decree. Accepting the conveyance, the plaintiff entered satisfaction of the decree in O. S. entered satisfaction of the decree in O. S. 720 of 1121 and gave a discharge of the mortgage Ex. A 2, granting the mortgagors defendants 2 to 4, the registered receipt Ex. B 1 dated 28-5-1122. But in the suit O. S. 92 of 1121 on the file of the additional District Munsif court Nagercoil, in which the plaintiff got himself impleaded under the provisions of conveyance in his favour to secure possession of the property conveyed to him, the sale in his favour and the mortgage in favour of the present first defendant, were rejected as not binding on the first defendant. The conveyance Ex. A 6 was set aside. The plaintiff had also filed another suit O. S. 278 of 1950 against the first defendant for recovery of the property on the strength of the sale deed. That suit was also dismissed the sale in favour of the plaintiff being set aside. The plaintiff preferred appeals but failed in the appeals also, the appeals being dismissed on 19-8-1958. Having failed to sustain the validity of the conveyance in his favour in consideration of which he gave a discharge of the mortgage and entered satisfaction of the decree he instituted the suit O. S. 44 of 1959 on the file of the Additional District Munsif court. Nagercoil for recovery of a sum of Rs. 829-25 as and by way of damages. The parties to this suit were the present defendants 1 to 4, that is, the mortgagors defendants 2 to 4 and the first defendant, whose transfer was set aside. The suit was dismissed and the appeal therefrom A. S. 178 of 1960 by the plaintiff also failed. The appellate court while holding that a claim for damages in the circumstances was untenable observed:

(3.) IN my view neither O. II rule 2 C. P. C. nor the bar of limitation can stand in the way of the plaintiff having a decree on the mortgage. This is not a case where a single cause of action has given a right to several reliefs. This is a case where on the setting aside of the conveyance the plaintiff proceeded on the view that he could claim damages and failed. The alternative claim in the present suit on the mortgage on doubt arises out of the same transactions but the cause of action in this suit on the mortgage is not the same. O. II rule 2 does not require that when a transaction gives rise to several causes of action, the plaintiff must combine all the causes of action in one suit and if necessary base his claim alternatively on them in the same suit. The requirement of the rule is that where there is a cause of action the plaintiff cannot split the cause of action into parts and claim relief in parts by several actions. The principle of O. II rule 2 C. P. C. is enunciated by the judicial Committee in Payanna Reena Saminathan v. Papa Lana Palaniapp (1913)41 Ind App 142 (PC), thus: