RAMA TULSA MAHAR Vs. BHAGCHAND MOTIRAM

JUDGEMENT

(1.) The plaintiff claims to be the assignee of the equity of redemption of a certain mortgagor, named Chima, Chima s mortgage having been created on the 17th of June 1890 in favour of the first defendant. The assignment of the plaintiff is dated the 2nd of April 1902. Subsequent to that assignment the Court under a money- decree obtained against Chima in Suit No. 229 of 1902 at a Court-sale held in July 1906 put up to sale the right, title and interest of Chima in this property which was attached by the decree-holder in that suit, and at that sale the defendant- mortgagee was declared to be the purchaser.

(2.) Prior to that purchase the defendant No. I had brought a suit upon Chima s mortgage for sale of the mortgaged property in 1905, and the plaintiff s father, who was Chima s assignee, was joined as a party to that suit. A decree was passed by which the defendants, including the plaintiff s father, were allowed six months time to pay the money due under the mortgage, and in default the plaintiff was, to recover the amount decreed by sale by applying for decree absolute. He never applied for sale, but rested content with the title that he was supposed to have acquired as purchaser at the Court-sale held under the decree in the money- suit of 1902.

(3.) The plaintiff now brings this suit for redemption of the mortgaged property, but the learned Judge has dismissed his claim on the ground that the time of six months allowed by the decree for making payment of the mortgage claim had long expired, and that this was an application in execution which should have been brought under Section 47 of the Civil Procedure Code and that a separate redemption suit could not lie. We are of opinion that the defendant in a suit for sale under a mortgage who is given six months time to pay the decretal debt is not in the position of a decree-holder who has a decree to execute. His right of payment within six months is a right which he has in mitigation of his liabilities under the decree. The contention of the defendant would result in this anomalous position that having the right to apply for sale and for decree absolute he abstains from exercising that right, yet nevertheless after three years have elapsed though he can no longer enforce the decree, he is put in the position of absolute owner of the property by reason of the defendant in the suit not having elected to pay off the mortgage. We think that if he does not apply for decree absolute he does not get rid of the relationship of mortgagor and mortgagee, and there is nothing to prevent the mortgagor or his representative from filing a suit for redemption. It has been held in England in Hansard v. Hardy (1812) 18 Ves. 455, 460. that a dismissal for want of prosecution of a mortgagor s action for redemption does not prevent him from bringing a fresh suit for redemption. A fortiori we think that his failure, to pay the amount of the decretal debt within the six months allowed to him cannot, so long as the relationship of mortgagor and mortgagee subsists, prevent him from filing a fresh suit for redemption, subject however to this that he cannot go behind the decree in the mortgagee s suit in so for as it settles the amount of the mortgage-debt up to the date of that decree. But it is not contended by the plaintiff in this suit that the mortgage-debt at that time was less than it is found to be by the Court, and, therefore, in permitting the present suit, there would be no violation of the provisions of Section 11 of the Civil Procedure Code. We reverse the decree and remand the case for disposal on the merits. The plaintiff must have the costs of the two appeals against the opposing defendants.