RAMNATH Vs. KARNIDAN

JUDGEMENT

(1.) THIS is a civil regular second appeal by the defendants against the judgment and decree of the District Judge, Bikaner, dated the 27th January, 1962, affirming the judgment and decree of the Civil Judge Bikaner dated the 7th November, 1960, in a suit for recovery of mortgage money by sale of the property under mortgage. The appeal raises an interesting question as to the applicability of Order 2, Rule 2, C. P. C.

(2.) THE material facts are these. On the 5th December, 1949, Mst. Lali, widow of rambus together with her son Ramnath, made a mortgage for a sum of Rs. 4000/- in favour of one Sobanlal Vyas with respect to the suit house. The plaintiffs are the legal representatives of the deceased Sohanlal. The defendant Mst. Tulcha is the daughter-in-law of Mst. Lali, wife of the said Ramnath, in whose favour Mst. Lali had made a will with respect to the house in question. The mortgage-deed is ex. 1. On the 19th May, 1953, the mortgagees instituted a suit for the recovery of rs. 797/- as interest on the mortgage money. In this suit, they prayed only for a personal decree against the defendants. This suit was admittedly decreed as prayed. Thereafter on the 8th October, 1959, the plaintiffs mortgagees brought the present suit for recovery of the principal sum of Rs. 4000/- relinquishing altogether their claim for interest on the ground that the mortgaged property was not likely to be sold for more than the principal money. The defendants Ramnath and his wife Mst. Tulcha filed separate written statements and raised a number of pleas; but it is unnecessary to mention any of them save that which mainly arises for determination in this appeal. That plea is that the plaintiffs' present suit was barred by virtue of Order 2, Rule 2, C. P. C. In view of the fact that they had brought an earlier suit in connection with the mortgage for recovery of interest only in 1953. This plea was rejected by both Courts below and the plaintiffs' suit was decreed. The defendants have now come up in second appeal to this Court

(3.) THE main question raised by learned counsel for the defendants, therefore, is that the view taken by the Courts below that the present suit was not barred by order 2, Rule 2, C. P. C. in the circumstances of the case is incorrect. The contention of learned counsel is that the plaintiffs could not have split up their claim against the defendants mortgagors in view of the provisions of Order 2, Rule 2 inasmuch as the cause of action in the case of both the suits was the same, to wit, the mortgage and that where a cause of action enabled a man to seek for larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.