RAMCHANDRA KOLAJI PATIL Vs. HANMANTA LAXMAN KADASKAR

JUDGEMENT

(1.) THIS was in effect a redemption suit filed by the plaintiffs in 1914 to redeem and recover property mortgaged in 1902. It appears that the plaintiffs filed suit No. 220 of 1905 to redeem the mortgage, but not wishing to proceed with that suit they were allowed to withdraw it with permission to bring a fresh suit provided that such suit was brought within two years send that the costs of defendants . in that suit were first paid. THIS suit was brought eight years after the withdrawal, and the plaintiffs suit has therefore been dismissed on the ground that they have not complied with the conditions imposed by the order allowing them to withdraw the first suit. It appears to us that the Court has failed to consider what was the nature of the suit filed in 1905. It is also possible that the considerations which induced the Full Bench to decide the ease of Ramji v. Pandharinath (1918) 21 Bom. L.R. 56, F.B. had not been recognised in the previous decisions of the Indian Courts. 1 he effect of the order made by the Court in the previous suit was to restrict the period of limitation which is allowed" by law-to a mortgagor to redeem. So long as it has not been decided that there was no mortgage at all then the relationship of mortgagor and mortgagee existed. The law allows a particular period to the mortgagor within which be can redeem the mortgage," The mere fact that he files a suit to redeem and then either abandons or withdraws it will not deprive him of his right to redeem. It is only when there has been a decision that there was no mortgage at all that it necessarily follows that the right to . redeem which has been set up falls to the ground. The result, therefore, of the decision of both Courts in this case would be that although it has never been decided that the plaintiff is not a mortgagor, still he- has no right left in him to redeem the property, and that on general principles must be wrong. Therefore, in my opinion, the view taken by the learned District Judge and the order made in Suit No. 220 of 1905 was erroneous, and there was nothing in that order which affected the plaintiffs right to redeem during the period of limitation allowed by the Indian Limitation Act. We set aside the decree of the lower appellate Court and remand the case for findings on facts. Costs costs in the cause. Heaton J.

(2.) THE only matter of importance with which we are concerned is whether the present suit is beyond time. THE plaintiffs who brought an earlier suit for redemption had been allowed to withdraw that suit with leave to bring another, provided they brought that other within two years. THEy have now brought another suit for redemption; but they have not done so within two years; they have indeed allowed eight years to .elapse. Apart from any other matter whatever, having regard to Section 874 of the Civil Procedure Code of 1882 which lays down that the law of limitation is not affected when leave is given, I should say that it was not open to the Court to impose a limitation of two years. Consequently I should hold that the suit is within time. My Lord the Chief Justice has dealt with another aspect of the case, namely, that the right to bring a suit for redemption is not lost so long as there has not been the decision of a Court against the existence of the relationship of mortgagor and mortgagee No doubt that in general is so, but I do not at present myself wish to express any opinion whether supposing a plaintiff brings a suit for redemption and abandons it, he would then have, or would not have, a right to bring a fresh suit for redemption. THE particular matter before us can be disposed of, I think, without expressing an opinion on that point. I agree that the case should be remanded to be determined by the Court of first appeal on its merits. Costs costs in the cause.