Ram Autar Pande vs Shanker Dayal

Adami, J.—The plaintiff in the case out of which this second appeal comes to us took a mortgage from Basudev Rai and Shankar Deyal Rai in consideration of an advance of Rs. 950. He was to take possession of 3 bighas of raiyati land and to enjoy the usufruct in lieu of interest; no date was fixed for repayment, but the mortgagor was to be entitled to recover possession by payment of the amount advanced on 30th Jeth in any year. The usufructuary mortgage bond was executed on 11th August, 1914. In 1919 a dispute arose regarding the possession of the land which resulted in proceedings u/s 145, Criminal P.C. In those proceedings it was decided that the plaintiff mortgagee and his lessee were out of a possession. Thereupon the plaintiff instituted a suit for recovery of possession on the strength of his mortgage bond. His only prayer in the plaint was for recovery of possession. After the close of the case, however he put in a petition that he might amend the plaint by an alternative prayer for recovery of the mortgage debt. The learned Munsif rejected this petition and thereafter dismissed the suit on the ground that the property mortgaged was joint family property and that defendant 3 bad not joined in the mortgage and that the plaintiff had failed to prove any legal necessity. The Munsif held that the mortgage was genuine and consideration had passed. In his judgment the learned Munsif stated that a money decree could not be allowed as there had been no prayer for it; he said that he left the point open and plaintiffs may seek their remedy, if so advised, against defendants 1 and 2 for the money actually advanced.

Against this judgment and decree an appeal was filed by defendants 1 and 2 against the decision that the mortgage bond was genuine. There was a cross appeal by the plaintiff asking for a money decree. This cross appeal was dismissed by the learned Subordinate Judge because the cross appeal was not sufficiently stamped. As to the appeal, the learned Subordinate Judge held that no consideration had passed, but he proceeded to find that no appeal lay because the defendants had been successful in the Court below and therefore there was nothing to appeal against.

The present plaintiffs on the basis of the statement made by the Munsif, that they might seek their remedy for the money actually advanced, instituted the present suit on 17th August 1921, praying for recovery of the debt under the bond of 1914.

The learned Subordinate Judge dismissed the suit first: on the ground that a money decree had been asked for in the previous suit and refused and that the provisions of Section 11, Civil P.C., barred the present suit; and secondly, on the ground that as the plaintiff had the opportunity in the previous suit of asking for the relief and had not taken that opportunity. Order 2, Rule 2, Civil P.C., precluded him from suing for the relief.

On appeal the learned District Judge has upheld the finding of the Subordinate Judge.

Before us Mr. Das takes up the point that Section 11, Civil P.C., cannot operate because, though the Subordinate Judge on appeal held that no consideration passed, that finding can have no strength as res judicata since the Subordinate Judge found that no appeal lay and dismissed the appeal.

The second point taken by Mr. Das is that the lower Courts are mistaken in thinking that Order 2, Rule 2 will operate. His contention is that the cause of action in the previous suit and the cause of action in the present suit are wholly different. He says that in the previous suit the cause of action was the dispossession of the plaintiffs and the prayer was only for recovery of possession, whereas in the present suit the plaintiff is merely asking for the repayment of a debt incurred under the bond. He contends that it cannot be argued that in the previous suit the plaintiff could have asked for a money decree on the basis of Section 68, Clause (b), T.P. Act, because it was found in that suit that there was no mortgage, and in fact the Court in the previous suit, having come to that finding, could not have given relief u/s 68, Clause (b).

I will deal with the second contention of Mr. Das first. It is quite plain that when the plaintiff instituted his first suit claiming the bond to be a mortgage bond and asking for recovery of possession, it was open to him to claim for the repayment of the mortgage money u/s 68, Clause (b). That relief was open to him and he did not claim it. His prayer for an amendment of the plaint was rejected and the remark of the Munsif in his judgment can hardly be held to amount to the grant of leave to institute a suit for money. It is quite true that the Munsif having found that there was no valid mortgage would be unable to grant a decree u/s 68, Clause (e). It is true too that the cause of action for recovery of the money as a debt due under the bond would be different from the cause of action in the mortgage suit asking for recovery of possession, for the facts to be proved would not be similar in the two cases. In both however the bond would have to be relied on. The trouble to my mind is, if Mr. Dass arguments are accepted and it is held that the present suit is merely a suit for a debt due on the bond, limitation will come in for the bond was executed on 11th August 1914 and the suit was not instituted till the 17th August 1921, and the suit would be barred. There is no doubt in my mind that in the previous suit the plaintiff should have asked for the relief allowed by Section 68, Clause (b), T.P. Act. He certainly cannot ask for that relief now. With regard to Section 11 of the Code of Civil Procedure, the learned Subordinate Judge came to a direct finding on an issue between the parties that consideration did not pass in 1914. The reason given by the learned Subordinate Judge for dismissing the appeal was not altogether a good reason. It was necessary to decide the point whether consideration passed between the parties and the learned Munsif came to a decision on that point which was against the interest of the defendants. If no appeal had been brought the finding of the Munsif would have operated as res judicata against defendants, and therefore, as decided by Mullick, J., in the case of Raghunath Kurmi Deonarain Rai SA No 1419 of 1916, the defendants had a right of appeal although the suit against them had been dismissed. I think therefore that Section 11, Civil P.C., will operate and bar this second suit, it having been found that no consideration passed on the bond of 1914.

I would therefore dismiss this appeal with costs.

Sen, J.

I agree.