VEDAPURATTI Vs. VALLABHA VALIYA RAJA

JUDGEMENT

(1.) The question which has been referred in this case is whether, notwithstanding the institution of a suit and the passing of a. decree for redemption, a subsequent suit for redemption of the same mortgage can be brought when the decree in the former suit has not been executed. I take it that for the purposes of this reference the words "when the decree in the former suit has not been executed" mean when the order provided for by Section 93 of the Transfer of Property Act for foreclosing the right to redeem, or for sale, as the case may be, has not been made.

(2.) The view which has been generally adopted by this High Court, though the decisions are not altogether uniform, is that a second suit will lie. The Bombay and Allahabad High Courts have held otherwise.

(3.) The answer to the question appears to me to depend-not upon whether or not at the time of the bringing of the second suit the relation of mortgagor and mortgagee subsists between the parties, but upon whether the mortgagor is precluded, by the operation of the doctrine of res judicata, by reason of the adjudication which he has already obtained, from bringing a second suit.