MEWA LAL AND PODAI TEWARI Vs. INDARPAL SINGH

JUDGEMENT

(1.) This appeal arises in a suit brought by the plaintiffs respondents for sale upon a mortgage executed on the 6th of September, 1895, by one Amir Singh, his four sons and his wife in favour of Mewa Lal and Lachini Narain, plaintiffs. Prior to the execution of that mortgage another mortgage had been executed in favour of the Akhara Panchaiti in 1883, A suit was brought by the prior mortgagees, and a decree was obtained by them under a compromise to which the present plaintiffs were also parties. After the compromise was made, the plaintiffs, on the 29th of March, 1900, brought a suit on the basis of their mortgage deed for a simple money decree, and they did not seek to enforce their right to bring the mortgaged property to sale. In that suit a decree was passed in favour of the plaintiffs, but, as the amount of the decree was not paid, the plaintiffs brought the suit out of which this appeal has arisen to enforce the mortgage. Various pleas were set up in defence, but they were overruled by the court below, and a decree was made in the plaintiffs favour for sale of the mortgaged property. The decree, however, provides that the plaintiff would not he entitled to a decree absolute for sale unless they relinquished all their rights under the money decree obtained by them.

(2.) The defendants, who are the mortgagors and members of their family, have preferred this appeal, and the first contention raised on their behalf is that in view of the provisions of order II, Rule 2, of the Code of Civil Procedure, the plaintiffs are not entitled to maintain this suit. This contention has, in our opinion, been rightly repelled by the court below. The answer to it is furnished by the provisions of order XXXIV, Rule 14, of the Code, That Rule provides that if a decree is obtained under a mortgage, the property comprised in that mortgage will not be sold in execution of such a decree unless the mortgagee obtains a decree for sale of the property, but order II, Rule 2, shall be no bar to the maintenance of a suit for sale. It cannot be contended that the first suit brought by the plaintiffs for a money decree could not be maintained. It is true that order II, Rule 1, provides that all suits should be so framed as to afford ground for final decision upon the subjects in dispute, and to prevent further ligitation concerning them. The penalty for not following the directions contained in that Rule is provided by Rule 2. Ordinarily, if Rule 1 was violated Rule 2 would preclude the plaintiff from beginning a second suit, but in the ease of a mortgage we have the distinct provision in order XXXIV, Rule 14, which permits of a suit being brought for sale upon the mortgage in spite of the provisions of order II, Rule 2. Therefore it is manifest that the Rule last mentioned is no bar to the present suit. It is urged that the bar is afforded by the fact that in the plaint in the previous suit the plaintiffs stated that they relinquished their right to enforce the mortgage. If this statement be regarded as an agreement releasing their rights as mortgagees that agreement, being without consideration, cannot be enforced. The mere averment in the plaint that the plaintiffs gave up their right under the mortgage for the purpose of that suit cannot be regarded as an extinguishment of the mortgagee rights. It is next contended that Section 11 of the Code of Civil Procedure is a bar to this suit. The matter now in dispute was never directly or otherwise in issue between the parties in the former suit, and it was not a matter which could have formed the ground of attack for the relief claimed in that suit. Therefore, in our opinion Section 11 or any of the explanations to that section has no application to the present case.

(3.) The next contention was that the present claim was barred by limitation. A to this we may only point out that in the written statement filed in the previous suit the mortgage in question was admitted. So that there was an acknowledgment of liability under the mortgage before the expiry of the prescribed period of limitation, and a fresh start for the computation of limitation accrued to the plaintiffs from the date of the acknowledgment. In the written statement mentioned above the allegations in the plaint were admitted, including an allegation as to the mortgage and the amount payable under the mortgage being due, and the only contention raised was that the stipulation as to interest was hard and unconscionable. We think that the court below came to a right conclusion in holding that the claim was not time barred. The acknowledgment, having been made by the manager of the joint Hindu family, was in our opinion binding on the other members. It is not suggested that there was any fraud or collusion in connection with the acknowledgment.