UTTAMCHAND Vs. SALIGRAM

JUDGEMENT

(1.) THIS is a second appeal by the defendant who is an assignee of a mortgage-decree dated 6th. January 1922 passed on the basis of a mortgage dated 29th March 1906 Ex. P-1 in mortgage suit No. 28 of 1921 brought by the legal representatives of the original mortgagee Sukhdeo against the legal representative of the original mortgagor, Gangaram and Devsing and Balaram. The preliminary decree which was passed, was based on a compromise effected. As the result thereof the present plaintiffs were exonerated from the decree and the then plaintiffs were content with accepting a decree for foreclosure against Balaram and Sheoram. The property in suit was mentioned in the decree as foreclosed and the then plaintiffs obtained a final decree and for-closed and got possession of the field with standing crops on 14th October 1923. Hence this suit by the plaintiffs for recovery of possession of the fields No. 21/4 with crops on the ground that the defendant had no right to the same under the decree assigned to him.

(2.) THE defence was that the plaintiffs though discharged were retained on the record, and that the decree was made absolute against them as well and that the suit was barred by Section 47, Civil P.C. The first Court held the suit not barred and passed a decree in plaintiff's favour for possession and crops worth Rs.400. The defendant's appeal was dismissed by the Additional District Judge, Akola. Hence he appeals. I think the appeal must fail. In spite of the fact that the present plaintiff's father Gangaram was one of the mortgagors of the field in suit, the then plaintiff's elected to obtain a decree against the other mortgagors and voluntarily abandoned their right to obtain a decree,. binding the interest of th,e present plaintiffs, who were defendants to the former suit. This was a voluntary and unqualified abandonment of their claim which must operate as an unqualified dismissal of that suit so as to bar a second suit by them on the same cause of action. If the suit having been thus dismissed, the then plaintiffs attempted to dispossess the present plaintiffs from possession of property belonging to them the latter is entitled to show that they have acquired immunity from all further claim based on the mortgage. The defendant cannot urge that he has a right to retain possession of the land until the plaintiffs offer to redeem him. So far as the plaintiffs are concerned the mortgage must be deemed to have been wiped out of existence. I think the Additional District Judge was right in holding that the defendant could not take up inconsistent position and urge the defence of bar of Section 47, Civil P.C., as when the plaintiffs came in under that section he successfully maintained that that section did not apply and the remedy was by regular suit. The defendant cannot blow hot and cold in the same breath as it were.