CHANDULAL Vs. BHARAT SINGH

JUDGEMENT

(1.) This is a second appeal by the plaintiff whose suit was dismissed by the Courts below on the ground that it was barred by Order 2, Rule 2, Civil P.C. The facts may be briefly stated. It appears that the plaintiff brought a previous suit for redemption of a mortgage. A preliminary decree in the suit was passed on 14th February 1927, and the date fixed for payment was 14 August 1927. The plaintiff deposited the entire amount due under the preliminary decree on 8th August 1927, and then applied for the preparation of a final decree. The final decree itself was prepared on 12 November 1927, but possession was delivered by the mortgagee on 17 February 1929. The plaintiff then brought the present suit for recovery of mesne profits from 8 August 1927 to 17 February 1929. This suit, as we stated before, was dismissed by the Courts below on the ground that it was barred by Order 2, Rule 2, Civil P.C.

(2.) The Courts below have relied on three cases of this Court : Goswami Gordhan Lalji Maharaj V/s. Bishambhar Nath 1927 All. 716, Ram Din V/s. Bhup Singh (1908) 30 All. 225 and Kashi Parshad V/s. Bajrang Parshad (1908) 30 All. 36. So far as the case reported as Goswami Gordhan Lalji Maharaj V/s. Bishambhar Nath 1927 All. 716, is concerned, it is enough to say that that has been definitely overruled by the Full Bench case of Ram Karan Singh V/s. Nakchhed Ahir 1931 All. 429. It was pointed out therein that the object of Order 2, Rule 2 is the prevention of the splitting up of one cause of action and not to compel the plaintiff to seek all the remedies which he can claim against the same defendants on account of several causes of action in one and the same suit. It is therefore clear that if the plaintiff obtained a cause of action for the present suit after the final decree in the previous suit was passed, then there is nothing in Order 2, Rule 2, which disentitles him from bringing the present suit. We have got to decide this case on the Civil Procedure Code, Act 5 of 1908, before its amendment in 1929. Under Order 34, Rule 7, in a suit for redemption if the plaintiff succeeds, the Court shall pass a decree ordering that an account be taken of what will be due to the defendant for principal and interest on the mortgage and for his costs of the suit, if any, awarded to him on the day specified in the decree which ordinarily is six months from the date of the preliminary decree. This amount is fixed and the plaintiff is directed to pay the same. If the plaintiff pays this amount on or before the date fixed, then the plaintiff applies under Order 34, Rule 8 for the preparation of a final decree. The Court when preparing the final decree has got to readjust the amount finally under Order 34, Rule 10, and if any legitimate sums are due to either party, the Court makes proper orders and directs the defendant to re-transfer the mortgaged property to the plaintiff, and if necessary, orders the defendant to put the plaintiff in possession thereof.

(3.) It would therefore appear that there is no provision for taking into consideration any mesne profits that might become due to the plaintiff by the failure of the defendant mortgagee to deliver possession. Indeed that question would be outside the scope of the inquiry in a mortgage suit for redemption. Any amounts that may be payable to either of the parties before the passing of the final decree will of course, be taken into consideration, but it cannot be in the contemplation of the Court that the defendant mortgagee will not deliver possession of the mortgaged property to the plaintiff after the passing of the final decree. If therefore the defendant remains in possession of the property even after a decree of the Court directing him to deliver possession of the property to the plaintiff, then the defendant is a trespasser and a fresh cause of action accrues to the plaintiff.