KISHAN NARAIN Vs. PALA MAL

JUDGEMENT

(1.) The difficulty in this case is due to the provisions of Rule 2 of Order II of the Civil P. C., 1908. This rule provides that every suit shall include the whole of the claim which the plaintiff is entitled to matte in respect of the cause of action. But the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. The illustration given shows that a personal claim for the mortgage money under a mortgage and the enforcement of the security for the debt are to be regarded as one and the same cause of action. This provision is in marked distinction to the law of this country, where a mortgagee is at liberty to appoint a Receiver under his deed to sue for the debt and to take proceedings for sale or foreclosure independently and at the same time. It is important, therefore, in considering the effect of the Code to bear in mind that its obvious intention is to establish a rule of law different from that accepted here.

(2.) The appellant was a mortgagee under a mortgage executed on January 19, 1904, by the three respondents. It was a mortgage to secure Rs. 11,748 with interest at Rs. 8 per month, and provided that the money was to be paid in two years. The conditions of the mortgage enabled the mortgagors to redeem within the two years if they thought fit. It also contained an express promise on the part of the mortgagee to pay interest for the first year, and provided that if the interest were not paid for the first year it should be competent to the mortgagee to cancel the fixed term and to realise. Clause 5 dealt with the conditions that would arise if the interest were paid for the first year and there was difficulty thereafter. It is one of the critical clauses in the present dispute, and it is in the following terms: 5. If we pay the interest on the expiry of the first year, we shall pay the interest on the mortgage money after every three months after the expiry of the first year. If by chance we are unable to pay the interest after every three months, we shall pay it after six months, without any objection. If we do not pay the remaining interest after six months, the mortgagee will be at liberty to cancel the term of two years and to realise with costs all the principal mortgage money with interest by means of a suit from the mortgaged property and our other moveable and immoveable property and our person. If the mortgagee of his own accord wishes to maintain the term of mortgage, he will have a right to realise only the remaining interest) by means of a suit from the said property and our person. We and our representatives shall have no objection and refusal.

(3.) The interest was paid up to July 4, 1905, but no further payment being made in respect of interest, on November 17, 1908, the mortgagee sued the mortgagors, and the first question that arises is what was the effect of that suit?