LAWS(PVC)-1920-2-129

DALUCHAND BALARAM MARWADI Vs. APPI KHEMA SASTE

Decided On February 10, 1920
DALUCHAND BALARAM MARWADI Appellant
V/S
APPI KHEMA SASTE Respondents

JUDGEMENT

(1.) The plaintiff took three mortgage bonds on the 6th July 1900 for Rs. 99 each over the same property from the 1st defendant, the consideration being the balance of Km. 274 due on the previous account, and Rs. 23 paid in cash. He sued on one of the bands in 1911 and obtained a decree thereon. He did mention in his plaint that he held two other mortgages over the property, and that he would take separate steps on them. The property was sold in execution of the decree on the one bond, but was not sold subject to the other mortgage charges. It was sold free of any incumbrances, and realised more than the amount due on the bond in that suit. The plaintiff has now filed this suit on the remaining two mortgage bonds. He cannot ask for sale of the mortgaged property. That has already been sold free of the mortgages in the previous suit. But he does ask for a decree for the amount due on the remaining two mortgage bonds, which ho contends will be effective as regards the. balance of the sale proceeds of the mortgaged property.

(2.) Both Courts have dismissed his suit on the ground that it was barred by Order II, Rule 2, of the Civil Procedure Code, and Sections 12 and 13 of the Dekkhan Agriculturists Relief Act. The case of Dhondo v. Bhikaji (1914) 17 Bom. L.R. 144, 154 was referred to. There a person holding two different mortgages on the same property from the same person sued on the second mortgage without impleading the. first mortgage, and obtained a decree. He then sued on the 1st mortgage, and it was hold that the 2nd suit was barred by reason of the decree in the 1st suit on the subsequent mortgage as res judicata under Section 11, Explanation IV, of the Civil Procedure Code. Mr. Justice Hayward in his judgment expressed an opinion that "if It had been found as a matter of fact that the transactions were transactions out of which the suit had arisen , then they would have constituted the same cause of action, and the subsequent suit would have been barred under Order II, Rule 2, by reason of the special provisions of Section 13 of the Dekkhan Agriculturists Relief Act."

(3.) Now there can be no doubt that these three mortgages were really part of the same transaction, whereby the plaintiff got security for the balance due on the old account together with the fresh cash advance, and when the first suit was filed, the Court was bound to inquire into the history and merits of the case, from the commencement of the transactions between the parties and the persons (if any) through whom they claimed, out of which this suit had arisen. The Court which decreed the 1st suit, having notice of the two mortgages executed at the same time as the suit mortgage, should have inquired into the history of those mortgages. However it did not do so. But it is quite clear that this is exactly the case to which Mr. Justice Hayward referred in his remarks which I have just quoted, which in that case may have been obiter. One can imagine that it might easily lead to fraud, and also to evasion of the objects of the Dekkhan Agriculturists Relief Act, if a party in the position of the plaintiff in this suit could sue on one mortgage, leaving aside other mortgages of the same date which together with the first mortgage really made up one transaction. He could thus avoid an account being taken of the whole transaction between the parties, and then at a future time file a suit on the remaining causes of action, which as a matter of fact really made up one entire cause of action. I think, then, that the plaintiffs having omitted to sue on these two mortgage bonds when he sued on the let mortgage bond, cannot now, ask the Court to pass a decree on those two mortgage bonds, ho as to be able to execute that decree against the balance of the sale proceeds of the property, which was sold in execution of the first decree. He is barred in my opinion under Order II, Rule 2 of the Civil Procedure Code, coupled with the provisions of Sections 12 and 13 of the Dekkhan Agriculturists Relief Act. The appeal, therefore, I think, must be dismissed. Heaton, J.