PURSHOTTAM GOVIND PADHYE Vs. ISUB MAHAMAD DINGANKAR

JUDGEMENT

(1.) This second appeal raises a curious point on which no authority precisely on all fours has been produced. The question in effect is, can a mortgagor at his pleasure bring, say, five separate redemption suits for redemption of a single mortgage debt, where the interest of the mortgagees has been divided by a gift or an assignment between some five co-sharers. In the present case we are dealing with two suits for redemption brought by the same mortgagor for redemption of the same mortgage debt. The one is against one sharer in the original mortgage security and the other suit is against another sharer or other assignees.

(2.) Both the lower Courts have held that the suit will lie because the original mortgagee has deliberately split up his interest amongst these five co-sharers so as to constitute separate shares as between themselves. With all deference to the learned Judges this seems to me to be a fundamental error in principle. This suit is essentially one to redeem the original mortgage debt. It cannot be open to the mortgagor to pay the entirety of the debt to only one of several assignees of the entirety of the mortgage debt. It is also clear that the mortgagor cannot be expected to pay the entirety of the debt in each one of the several suits he brings.

(3.) It is contended that if he pays the whole mortgage debt in the first suit, he could not be called on to pay it in suits 2 to 5. But to that the answer of the other co-sharers in suits 2 to 5 would be: "I have not been paid anything by the mortgagor, The mortgagee in the other suit had no authority to receive my share of the mortgage debt." There are numerous other impossible situations which might arise, if this sort of suit was countenanced by the Court, For instance, different results in the five suits might be arrived at in the different Courts in which they were decided.