SHRIDHAR SADBA POWAR Vs. GANU MAHADU KAVADE

JUDGEMENT

(1.) The question for our determination in this second appeal is whether the presant redemption suit which was brought in 1921 for the redemption of the mortgage created in 1867 is barred by reason of the fact that a similar redemption suit was brought in 1894 by the same plaintiff and was dismissed for default in 1897. The lower Courts held that under Order IX, Rule 9, or otherwise the plaintiff is prevented from instituting this second suit.

(2.) In our opinion the question turns on the true meaning and effect of Section 60 of the Transfer of Property Act, which, after setting out what amounts to a right to redeem, proceeds: Provided that the right conferred by tins section has not been extinguished by act of the parties or by order of, Court. The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.

(3.) In the view we take, we think this section means that unless the right to redeem is extinguished by act of the parties as e, g. by a conveyance of the equity of redemption to the mortgagee, it must be extinguished by an order of the Court expressly directed to the point of extinguishment, For instance under Order XXXIV, Rule 7, which provides for the ordinary preliminary decree in a redemption suit the rule provides that the decree shall direct that if payment is not made on or before the day to be fixed by the Court, the plaintiff shall (unless the mortgage is simple or usufructuary) be debarred from all right to redeem or (unless the mortgage is by conditional sale) that the mortgaged property be sold. A sale by order of the Court, when carried out, would be another way by which the mortgagor's right to redeem that particular property would be extinguished, for in the hands of the purchaser under the Court sale the land would be free from redemption by the mortgagor.