NILU ROY Vs. ASIRBAD MANDAL

JUDGEMENT

(1.) This is an appeal under Order XLIII, Rule 1, Clause (u), of the civil Procedure Code, from an order of remand made under Order XLI, Rule 23, in a suit to enforce a mortgage-security. The defendant executed an installment mortgage bond in favour of the father of the plaintiffs on the 25th June 1900, in respect of his share in the disputed property. The bond provided that, if default was made in the payment of two successive installments, the entire sum would become recoverable. On the 30th November 1917, the plaintiffs, upon the allegation that Bush default had been made-, instituted the present suit for realization of their dues by sale of the hypothecated property. It appears that on the is February 1899 the defendant and his brother, now deceased, had executed another simple mortgage in favour, of the father of the plaintiffs in respect of the entire property. In 1911 the mortgagee sued to enforce (hat mortgage and on the 27th November 1911 obtained a decree for sale which has not yet been executed. In that suit no mention of the second mortgage was made by either party. The mortgagor- defendant resist the present suit on the second mortgage on the ground that it is not maintainable in view of the decree already made in the previous suit which might, and ought to have included the claim now put forward. The Trial Court gave effect to this contention and dismissed the suit, On appeal, the Subordinate Judge has coverlid the objection in bar as untenable and has remanded the case for, investigation on the merits, We have been invited, on this appeal, to examine the legality of the order made by the Subordinate Judge.

(2.) There has been a sharp difference of judicial opinion upon the question whether the bolder two independent mortgages over the same property, who is not restrained by any covenant in either of them, is competent to institute separate suits to obtain a separate decree for sale on each of them The point was mooted before a Full Bench of the Allahabad High Court in Sri gopal v. tirthi Singh 20 A. 110 (F.B.) A.W.N. (1897) 216 : 9 Ind. Cas. (N.S.) 431 The Court did not express an opinion upon the question, further than this, that they were not prepared to endorse the decision of the lower Appellate Court that the second of such separate suits would be barred by the application of Section 4 of the Code of Civil Procedure, 1982 which embodied the principle that every suit must include the whole of the claim which the plaintiff was entitled to make in respect of the cause of action). When the case was taken up to the Judicial Committee, Sri Gopal v. Pirthi Singh 29 I.A. 118 : 24 A. 429 (P.C.) : 4 Bom. L.R. 827 : 6 C.W.N. 889 : 8 Sar. P.C.J. 293 Sir Ford North observed as follows, with regard to the difficulties which had to be removed from the plaintiff s path before he could succeed:

(3.) Among others, Section 43 of the Civil Procedure Code was held to be a bar to his suit in the two first Courts. The Court of Appeal expressed some doubt whether that was correct. There might have been a nice question to be argued; but the appellant s Counsel did not it and did not even read the section to the Committee." It was apparently not brought to the notice of the Judicial Committee that the same Fall Bench which had, on the 10th November 1897, expressed a doubt on the question in the case then under appeal, had, shortly after ward, on the 17th February 1898, made a definite pronouncement on the subject in Sundar Sirtgh v. holu 20 A. 322 (F.B.) : A.W.N. (1898) 58 : 9 Ind. Dec. (N.S.) 566 and bad ruled that there was nothing in the Code of Civil Procedure or in the Transfer of Property Act to prevent the holder of two independent mortgages over the same property, who was not restrained by any covenant in either of them, from obtaining decree for sale on each of them in a separate suit. This decision of the Allahabad High Court has formed the subject of much controversy in the other High Courts. Its correctness was questioned in Madras in the cases of Doasami v. Venkataseshayyar 25 M. 108 : 11 M.L.J. 373 and Nattu Krithnnna chariar v. Annangara chariar 30 M. 353 : 2 M.L.T. 330 : 17 M.L.J. 301 But the authority of these cases has been considerably shaken, if they have not been actually overruled, by the decision of the Full Bench in Subramania Aiyar v. Bal subramania Aiyar 30 Ind. Cas. 317 : 38 M. 927 (F.B.) : 29 M.L.J. 195, which affirms the proposition that it is open to a mortgagee to bring a suit for the recovery of his debt by sale of the properties mortgaged to him, subject his interest in a prior mortgage The same view has been recently approved in Patna: Jagemath Singh v. Mohra Kuvar 39 Ind. Cas. 76 : 2 P.L.J. 118 : 1 P.L.W. 653 : (1917) Pat. 194 The Bombay High Court has, on the other hand, consistently refused to follow the rule enunciated in Sundar Singh v. Bholu 20 A. 322 (F.B.) : A.W.N. (1898) 58 : 9 Ind. Dec. (N.S.) 566 as will appear from Keshavram Dulvaram v. Bmchhod Fakira 7 Ind. Cas. 330 : 38 C. 60 : 13 C.L.J. 21 : 14 C.W.N. 1053 and Dhondo Ramchandra Kulkarni v. Bhikoii Gopal 27 Ind. Cas. 1005 : 39 B. 138 ; 17 Bom. L.R. 144. in this Court, a doubt was expressed by Brett and Sharfud Din, JJ., in Hari Narain Banerji V. Shama Sundari Dasi 6 Ind. Cas. 159 : 37 C. 589 : 11 C.L.J. 551 where, however, the question did not actually require decision. But in Gobind Prasad v. Tek Narain 7 Ind. Cas. 330 : 38 C. 60 : 13 C.L.J. 21 : 14 C.W.N. 1053 Brett and Vincent, JJ., ruled that a person having several mortgages over the same property was entitled to bring a suit on the earlier mortgages without joining in that suit his claim under the later mortgages. The cases in Bombay and Madras which were pressed upon the attention of the Court were all distinguished. In this Conflict of, judicial opinion, no useful purpose would be served by an examination of the facts of the particular cases where the question arose, it sufficient to state that several of the decisions either entirely ignore or do not attach sufficient importance to the obvious distinction between the question of the right to institute a suit and the question of the nature and form of the relief which may be properly granted therein if the suit is held to be maintainable. We are here concerned primarily with the question, whether the plaintiffs- respondents were entitled to institute this suit. If the answer be in the affirmative, the subsidiary auction would arise, what relief are the plaintiffs entitled to obtain.