JOTI LAL SAH Vs. SHEODHAYAN PRASHAD SAH

JUDGEMENT

(1.) These three second appeals arise out of three analogous suits in which the plaintiff claimed a declaration of his right of redemption of properties covered by usufructuary mortgages in favour of the predecessors of the principal defendants. The plaintiff alleged that the mortgage money had been satisfied by the usufruct of the properties and claimed in the alternative that an account be taken and the plaintiff given a fixed time for depositing the amount. The suits were dismissed by the Munsif as being barred by the principle of res judicata and the appeals were dismissed by the Subordinate Judge on the ground that they were not maintainable at the instance of the plaintiffs. During the pendency of the litigation the whole equity of redemption in the mortgage properties had become vested by virtue of a partition in Parmeshar Prashad Sah who had been impleaded as a defendant in the suits. His application to be transferred as an appellant, and to be allowed to maintain the appeals, was rejected. In second appeal it is contended that the suits should have been tried on merits.

(2.) I take first the question of res judicata. The predecessors in interest of the plaintiffs brought suits 335 and 354 of 1914 for redemption of these very mortgages on similar allegations. The suits ended in decrees fixing the amount which was to be paid by the plaintiffs to redeem the mortgages and giving a period of grace for payment. It is contended for the respondents that payment not having been made within the stated time the right of redemption is extinguished. Section 60 Transfer of Property Act, declares the right of a mortgagor to tender the mortgage money and redeem the mortgage provided that the right conferred by the section has not been extinguished by act of the parties or by decree of a Court." The decision in the previous suits affirmed the mortgagor's right of redemption and did not couple with this declaration any order directing the right of redemption to be extinguished in default of payment. Order 34, Civil P.C, preserved the right of redemption even in a suit for sale until the actual confirmation of the sale (R.5); and in a suit for redemption until the mortgagee has applied for and obtained a final decree debarring the mortgagor from his right to redeem (R.8). Whether such a final decree can at all be passed in connection with an usufructuary mortgage I need not examine here. It is sufficient to say that no such final decree has been applied for or passed. Therefore the mortgage subsists and the equity of redemption is still alive.

(3.) It was then suggested for the respondent that the plaintiff should have come by way of application under Section 47, Civil P.C, and not by a fresh suit. The contention receives some support from the decision of the Madras High Court in Veda Puratti V/s. Vallabha Valiya Raja (1902) 25 Mad 300, but that decision expressly distinguishes the cases in which there had been a direction for foreclosure or sale in default of redemption from cases in which there has been no such direction; so that this Madras decision has no application to the facts before us even if it be accepted to be good law. A different and in my opinion more correct view of the law was taken by the Full Bench of the Allahabad High Court in Sita Ram V/s. Madho Lal (1901) 24 All 44. Knox, A.C.J., observed: It is true that where a Court has once adjudicated upon a mortgagor's right to redeem, so many of the issues as bore upon that, and were heard and determined, become res judicata and cannot be re-opened, but unless there has been a determination that the mortgagor has no right to redeem, there would still remain one other issue in a subsequent suit which would not be res judicata, and which would have to be heard and determined. In a second suit for redemption there would always be the question to be tried whether the plaintiff has or has not a right to redeem reserved to him by law until the mortgagee has applied for an order for sale. This issue would naturally not have been, and could not have been, in issue in the former suit; and Aikman, J., in the course of his judgment cites the following passage from the Calcutta decision in Roy Dinkur Doyal V/s. Sheo Golam Singh (1874) 22 WR 172: It seems to us plain that the principal cause of suit is the relation which subsists between the parties as mortgagor and mortgagee, and the consequent right on the part of the mortgagor at all reasonable times to ask for an account from the mortgages... Now the former suit effected an adjustment of accounts up to the date of 18 April 1868. The substantial cause of action within the meaning of Section 2, Act 8 of 1859 in the present suit, that which the plaintiff desires to have heard and determined, is the stats of accounts which has arisen since 18 April, 1868--obviously and entirely a fresh cause of action. The matter which the Court is asked in this suit to hear and determine, is a matter which has arisen and come into being since the matter of the last suit was heard and determined.