(1.) The plaintiff has filed this appeal against a concurrent decree passed by both the Courts dismissing his suit on a preliminary ground that the present suit was not maintainable in view of a decree passed in an earlier suit for redemption being Civil Suit No. 235 of 1945. One Shekan Kasim Patil was the owner of survey No. 16/6 admeasuring 39 gunthas situate at village Kundalwadi, Taluka Walva, District Sangli. By a usufructuary mortgage dated June 6, 1927 Shekan Kasim Patil mortgaged this property to one Aba Farid Bargir to secure repayment of Rs. 150/- borrowed by him. Aba Farid Bargir, the mortgagee, by a registered deed of assignment dated May 25, 1938 assigned his interest in the mortgage in favour of defendant Kashim Patil. The plaintiff purchased the equity of redemption from Shekan Kasim Patil by a registered deed dated 26-10-1956. The plaintiff filed a suit in the year 1967 for redemption of this mortgage. It was inter alia contended by the defendant in the written statement that the original mortgagor Shekan Kasim Patil had filed a suit for redemption against the defendant being suit No. 235 of 1945. In that suit on November 22, 1946 a decree to the following effect was passed:-- "The plaintiff do pay to the defendants Nos. 2 to 7 Rs. 140/- together with interest thereon at 6 pel cent per annum from the date of the decree till satisfaction by two equal annual instalments. The first instalment to be paid in the month of April 1947 and the second in April 1948. In default of payment of any in-talment as aforesaid the said defendants shall realise the same by sale of a sufficient portion of the mortgaged property under Section 15-B of the Dehkhan Agriculturists' Relief Act (hereinafter referred to as "the Act") The plaintiff do recover possession of the suit land from the defendants forthwith. The plaintiff do pay the costs of defendant No. 3 and bear his own. The eosts to be paid along with the aforesaid instalments." The payment in accordance with this decree was not made.
(2.) Before the trial Court a preliminary issue was raised whether the present suit was competent in view of the decision in Civil Suit No. 235 of 1945. The trial Court took the view that the suit was not maintainable and that finding of the trial Court was confirmed in appeal by the learned District Judge, Sangli. It is against this concurrent decree passed by both the Courts on the preliminary issue that the present appeal is filed by the plaintiff.
(3.) Mr. Pratap on behalf of the plaintiff submitted that both the Courts were in error in taking the view that by reason of the decree passed in the earlier Civil Suit No. 235 of 1945 and the payment not being made in accordance therewith, the present suit was not maintainable. His submission is that having regard to the provisions of Section 60 of the T. P. Act unless the equity of redemption is extinguished by act of parties or by the decree of a Court the right to redeem will survive and the fact of mere institution of an earlier suit for redemption will not come in the way of the mortgagor or his successor-in title filing a fresh suit for redemption. He submitted that the right to redeem in the present case has not been extinguished either by act of the parties or as a result of the decree passed in the earlier suit and therefore a second suit for redemption is not barred. Mr. Rane, on the other hand, on behalf of the defendant submitted that in view of the provisions of Section 15-B of the Act when the decree was passed on November 22, 1946 in Civil Suit No. 235 of 1945 a final decree was passed debarring the mortgagor from the right to redeem the mortgaged property and therefore a subsequent suit for redemption could not be instituted. He, therefore, submitted that both the Courts were right in taking the view that the present suit instituted by the plaintiff was not maintainable in view of the earlier decree passed in Civil Suit No. 235 of 1945.