RAJARAM VITHAL SUTAR Vs. RAMCHANDRA PANDU

JUDGEMENT

(1.) The facts leading up to this second appeal are that one Gamabai executed a mortgage on July 24, 1895, in favour of one Khandu. In 1903 Khandu filed a suit against Gamabai and her husband. This suit was filed on the allegation that the property had been sold to Khandu by Gamabai. Gamabai contended in that suit that, although in form it was a sale-deed, the document was really a mortgage. The Court accepted the contention of Gamabai, and a decree was passed on June 16, 1904, by which Gamabai was declared to be entitled to retain possession of the property, if she paid a specified sum of interest to Khandu. In default, Khandu was to get possession of the property as mortgagee.

(2.) In August 1904 Gamabai filed a suit for redemption. While the suit was pending, Gamabai died, and her heirs were not brought on record, with the result that the suit abated in June 1905. The present suit was filed by the grandsons of Gamabai for redemption, and the only question that survives in this second appeal is whether this suit is barred by reason of the fact that the earlier suits for redemption abated in June 1905.

(3.) Now, under Order XXII, Rule 9, "where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action." It is contended by Mr. Shah that, inasmuch as both the suits were for redemption, they were on the same cause of action, and as the first suit had abated, the second suit does not lie.