AMEENAMMAL Vs. MEENAKSHI

JUDGEMENT

(1.) The plaintiff is the appellant. (Both plaintiff and defendant are women). The facts out of which this suit has arisen may be shortly stated thus. The plaintiff was the simple mortgagee of certain lands under a bond of 1899 executed by third persons to her predecessors-in-title. She hypothecated that hypothecation right and other properties to the defendant in 1908 for Rs. 200 The hypothecated hypothecation right became barred in 1911, owing to a suit not having been brought against the third persons either by the plaintiff (the mortgagee under it) or by the defendant (who obtained transfer of that mortgage from plaintiff by way of security). Then the defendant brought a suit in 1915 against the plaintiff on her (defendant s) own mortgage of 1903 for recovery of the amount due to her. The defendant in that suit, (namely, the present plaintiff) pleaded that the present defendant (plaintiff in that suit) having by her default failed to sue for and recover from the third persons the money due under the bond of 1899 left with the defendant as security, she (the defendant) was liable to account to the plaintiff for much more than the amount sued for, on the bond of 1908 and that, therefore, the suit ought to be dismissed. That plea of the defendant in that suit (the present plaintiff) was accounted therein. It was found that more money was due to the present plaintiff by reason of the defendant s accountability for her default than was claimable by the defendant under the bond of 1908 fend the defendants former suit was accordingly dismissed. The plaintiff brought the present suit to recover the difference between the amount alleged by her to be due to her as damages, caused by the defendant s default and the amount due to the defendant under the mortgage of 1908. Several defences were raised in this suit. One of the contentions put forward by the defendant before us, namely, that the plaintiff has no cause of action and no right to claim damages for the defendant s default in suing the third persons (mortgagors of 1?99) cannot be accepted, as the plaintiff s right to claim such damages was established in the former suit and is, therefore, res judicata.

(2.) The only defences which need be considered are: (1) that the suit Is barred by limitation; and (2) that the suit is barred by res judicata, by reason of the decision in Original Suit No. 226 of 1915, that is, the suit brought by the present defendant against the present plaintiff for recovery of her mortgage amount and sale of the mortgaged properties. The District Munsif decided the question of res judicata in favour of the plaintiff but decided the question of limitation against the plaintiff and dismissed her suit.

(3.) As regards the question of res judicata the District Munsif s reasoning was that the causes of action in the two suits were different and, therefore, there was no res judicata. The lower Appellate Court did not go into the question of res judicata but decided the suit solely on the question of limitation holding that either Article 65, or Article 115 of the Limitation Act (three years period) applied and that Article 116, relied on by the plaintiff and providing a period of six years, did not apply. I do not think it necessary to go into the question of limitation, as I am satisfied that the District Munsif is wrong in high decision on the point of res judicata and the plaintiff s suit must fail on the decision against her on that point. The first suit was brought on the transaction of mortgage between the two parties entered into in 1908. The present suit was also based on that same transaction, namely, on the alleged obligation of the defendant created by law under the same transaction. The cases in Mahabir Pershad Singh v. Macnaghten 16 C. 682 (P.C.) : 16 I.A. 107 : 13 Ind. Jur. 133 : 6 Sar. P.C.J. 345 : 8 Ind. Dec. (N.S.) 451 Vinayak v. Dattatraya 26 B. 661 at p. 667 : 4 Bom L.R. 462, Ruhhminibai v. Venkatesh 81 B. 527 : 9 Bom. L.R. 958., Satyabadi Behara v. Haribnti 34 C. 223 : 5 C.L.J. 102, clearly establish, in my opinion, that where a transaction of mortgage has become fully ripened, so that the rights and liabilities of the parties can be dealt with, by the Court before which the suit is brought in respect of that transition, whether the suit; is for foreclosure by the mortgagee or for sale by the mortgagee, or, in the alternative, for foreclosure or sale by the mortgagee or for redemption by the mortgagor, all questions (including even claims for rent due on transactions inseparably connected with the mortgage) relating to the taking of accounts between the mortgagor and the mortgagee ought to be decided in one and the same and in the very first suit, and no second suit can be brought by either party, for any claim arising out of that same transaction of mortgage. I shall only quote a few sentences from two of these decision. In Vinayak v. Dattatraya 26 B. 661 at p. 667 : 4 Bom L.R. 462, it is said: Now, the question is one which arises directly out of the mortgage transaction, which was the subject matter of the litigation in the former suit. But the decree in a suit for redemption must be such as to enable the Court to do complete justice, and, as far as it is possible, the Court endeavours to make a complete decree that shall embrace the whole subject and determine upon the rights of all the parties interested in the estate. So in this case the claim on which we are now asked to adjudicate is one that could and ought to have been advanced in the former suit. Without a determination on it, there was not a complete adjustment of the rights of the parties. Where a given matter becomes the subject of litigation in, and of ad-judiction by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the fame subject of litigation in respect of matter which might have teen brought forward as part of the subject in contest, but which was not brought forward only because they have from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. The comprehensive character of suits relating to mortgages and the obligation incumbent on litigants to the that the decree in them over all their rights his been repeatedly recognised by the Courts.