KUSHABA RAMJI THOKE Vs. BUDHAJI SAKARAM THORAT

JUDGEMENT

(1.) The plaintiffs are the successors-in-title to the equity of redemption, which once existed in one Abaji Haibatrao, through one Hazarimal Birdichand who had purchased the equity of redemption at a Court-auction. He had sued for redemption in Suit No. 1138 of 1895, and a decree for redemption was passed with this condition that if the mortgagor failed to pay the mortgage money within the time provided by the decree he should be finally debarred from all rights to redeem. The mortgage was not redeemed, and the execution of that decree is now barred by limitation.

(2.) The question in this suit was whether a second suit for redemption would lie. The trial Court rejected the claim. But the lower appellate Court relying on the decision in Ramji v. Pandharinath (1918) 21 Bom. L.R. 60, F.B. reversed the decree of the lower Court and remanded the suit for trial. That decision was justified at any rate by the head-note in the case referred to, which, I think, although it followed the question which was referred to the Full Bench, is worded somewhat too widely, as the terms of the decree in that case were to this effect, that if the plaintiff failed to redeem the property within the decretal period, then the mortgagee should recover the amount by sale of the property. The lower appellate Court in passing the order of remand now under appeal did not consider the terms in which the decree was passed in Suit No. 1138 of 1895. In Sita Ram V/s. Madho Lal (1901) I. L, R. 24 All 44. which was the case upon which the Chief Justice and myself relied for the opinion we gave on the question propounded, the learned Judges expressed the opinion that if the decree in the first suit provided indistinct terms that incase of default in payment the mortgagor would be debarred from redeeming the mortgaged property, afterwards a second suit would be clearly barred under the rule of res judicata.

(3.) The difficulty arises really from the fact that the decree in Suit No. 1138 of 195 was passed under the Transfer of Property Act which did not provide for a decree absolute, so that it was not strictly accurate to apply the term decree nisi to a redemption decree under the Act. Only one decree was passed, it being loft to the parties in execution to determine what effect should be given to that decree. I think very probably my own opinion as expressed in my judgment in Ramji V/s. Pandharinath was that a decree passed under the Transfer of Property Act, in whatever form, was in effect a decree nisi, and would not of itself put an end to the mortgage while it remained unexecuted. But considering the dissenting judgment by my brother Shah in that case and the particular terms of the decree with which the Full Bench was then dealing, I am not prepared now to say that the decree in the form in which it was drawn up in this case Comes within that decision. The result must be, therefore, that the appeal must be allowed and the decree of the trial Court restored with costs throughout.