Ranga Ayyangar and Others vs Narayana Chariar alias Chakravarthi Vijaya Raghava Chariar and Others

Sadasiva Ayyar, J.—The plaintiffs are the appellants. The first plaintiff''s father, Sreenivasa Aiyangar, mortgaged the plaint properties with

possession to the defendant''s ancestor, Srinivasa Chariar in 1864. The Othi deed contained also a covenant by the mortgagor to pay the mortgage

money personally. The defendant''s ancestor brought a suit against Sreenivasa Aiyangar''s sons in 1867, for recovery of the Othi amount of Rs.

136, on the charge of the mortgaged property. (The plaint itself was not filed in the records but the suit might be taken as having contained the

usual prayers for sale on default and for recovery of the balance if any from the defendants therein to the extent of their ancestral properties.) In

April 1872 the decree (Exhibit A) was passed, of which the operative portion is as follows:

The plaintiff obtain from the defendants the suit amount and all the costs of the suit, that the Othi property be sold in order to satisfy the decree in

case the decree amount be not paid, within six months from this day, that the plaintiff is entitled to obtain interest on costs at 12 per cent, per

annum from this day and that the defendants are entitled to obtain possession of the Othi land in execution through Court after satisfying the decree.

This decree passed in favour of the present, defendant''s ancestor primarily but in which the present plaintiffs were also granted a right to redeem

the property and to obtain the-possession of it from the present defendant''s ancestor in execution on payment of the amount decreed was not

executed by either of the parties to that decree. The present suit was brought nearly forty years after the date of the former decree for the

redemption of the same mortgage. (The plaintiffs Nos. 1, 2 and 3 in this suit were the defendants Nos. 4, 5 and 6 in the former suit of 1867.) The

plaintiffs Nos. 4, 5 and 6 is this suit are the sons of the deceased Aravamudu Aiyangar who was the first defendant in the former suit, The seventh

plaintiff in this suit is the son of the second defendant in the former suit. I shall hereafter for the sake of brevity make no distinction between the

plaintiffs and their ancestors or between the defendants and their ancestors.

The sole question in this case is whether the present suit is barred as res judiata by the decree in the former suit. Both the lower Courts decided

the question in the affirmative and hence this Second Appeal.

It seems to me clear, that if in the former suit there was a decree in favour of the present plaintiffs (though they were the defendants in the former

suit) and if it was an executable decree and if that decree granted them substantially the same reliefs as they now claim in this suit they are barred

by res judicata from maintaining the suit, and notwithstanding the strenuous and able arguments of Mr. T.M. Krishnaswami Ayyar who appeared

for the appellants before us, I have come to the conclusion that the finding of the lower Courts was correct on the question of res judicata.

In the first place I dissent from his contention that the decree (Exhibit A) of 1872 merely declared the present plaintiff''s right to get possession

of the properties on payment of the mortgage amount and did not give them any right to obtain possession in execution in that suit. The Tamil word

at least in the Tanjore district is always used to mean ""the obtaining of possession in execution through Court"" and I think that the decree (Exhibit

A) did give the plaintiffs (who were the defendants in the suit of 1867) the right to obtain possession of the mortgaged properties through Court, in

execution of the provisions of that decree on their payment of the mortgage amount.

In order to clear the ground further it has to be remarked that the decree (Exhibit A) of 1872, was passed long before the Transfer of Property

Act and the present CPC were passed. The decre6 (Exhibit A) as I said before gives the present plaintiffs who were the defendants in that suit a

right to obtain possession of the plaint land through the Court in execution on condition of their satisfying the decree passed in the present

defendant''s (then plaintiff''s) favour. In Vedapuratli v. Vallabha Vally a Raja ILR (1902) Mad. 300, there occur several dicta in the long and

exhaustive judgment of Sir Bhashyam Ayyangar, J. At page 301, he says; ""Whether the decree be in a suit for fore-closure or in a suit for sale or in

a suit for redemption there is in each a conditional decree for redemption in favour of the mortgagor, the condition being the payment by the

mortgagor of the amount decreed on or before the data fixed."" ""Decrees for specific performance, decrees respecting rights of easement and

similar decrees are often made conditional but they are not the lass final judgments, having the force of res judicata. This, I venture to state, is

equally so under the English Law and all decrees whether conditional or unconditional are to be worked out and enforced in execution."" I entirely

and respectfully agree with these observations; no doubt the learned Judge was referring to decrees for sale and for redemption passed under the

Transfer of Property Act, but his observations apply to this decree of 1872 also which contains a conditional decree in favour of the mortgagors

for redemption though it was a mortgagee''s suit for sale. In Adipuranam Pillai v. Gopalasami Hudah ILR (1908) Mad. 354, the following passage

occurs at page 360: ""The reason on which is based the decision of the Pull Bench in Vedapuratti v. Vallabha Valiya Raja ILR (1902) Mad. 300

renders it at least doubtful whether a suit for redemption could be obtained by a mortgagor who has failed as defendant in a suit for sale on the

same mortgage,"" It seems to me that the doubt so expressed is (if I may say so with respect) a very proper doubt and I think that the reasoning of

the decision in Vedapuratti v. Vallabha Valiya Raja ILR (1902) Mad. 300 does prevent a mortgagor who as defendant in the mortgagee''s decree

for sale got a conditional decree for redemption from afterwards maintaining a suit of his own for redemption and possession of the mortgaged

property instead of executing the conditional decree for redemption passed in the first suit. A decree for redemption is almost invariably a

conditional decree whether it is passed in a mortgagee''s suit for sale or a mortgagor''s suit for redemption. No doubt where it ia passed in a

mortgagee''s suit for sale, it is not usually passed on the invitation of the mortgagor (defendant) and '' in the language used in Adipuranam Pillai v.

Gopalasami Mudali ILR (1908) Mad. 354, ""the defendant is a decree-holder in spite of himself, an involuntary decree-holder,"" but I do not see

how this could on principle make any difference in the decision of the question whether the mortgagor-defendant who has been given such a

decree is entitled only to execute that decree, or whether he is entitled to bring a fresh suit for redemption, despite the doctrine of res judicata. As I

said before the decree of 1872 is a decree in favour of the mortgagor also, as it empowers him to recover possession of the property in execution.

The legislature in Act IV of 1882 has enacted that decrees passed in mortgage suits whether brought by the mortgagor or mortgagee should (if

necessary) be made to contain a direction that the mortgagee shall put the mortgagor in possession of the mortgaged property on the mortgagor,

paying up the amount mentioned in the decree as due to the mortgagee. [See Sections 86, 88 and 89 of the Transfer of Property Act now

repealed by the Civil Procedure Code, which however re-enacts very similar provisions in Order XXXIV, Rule 2, Clause (c), Rule 4f Clause (1)

and Rule 5, Clause (1)(o).] The decree of 1872 contains the same direction. Mr. Krishnaswami Ayyar laid much stress1 upon what he argued was

a material difference between the language of Section 60 of Act IV of 1882 which deals with the right o� the mortgagor to redeem and the

language of Section 67 which refers to the right of mortgagee to obtain an order for foreclosure or sale. In Section 67 the right of the mortgagee to

obtain an order for foreclosure or sale is restricted to the period ""before a decree has been made for the redemption of the mortgaged property.

These words ""before a decree has been made for the redemption of the mortgaged property"" or the correlative words ""before a decree has been

made for sale of the property"" do not appear in Section 60. He therefore argued if I understood him aright, that a decree for sale in a mortgagee''s

suit, though it may also contain a decree for redemption in favour of the defendant-mortgagor does not bar a separate suit by the mortgagor for

redemption whereas a decree for redemption in a mortgagor''s suit will bar a separate suit by the mortgagee for sala afterwards. I do not think that

the insertion of the words ""before a decree has been made for redemption of the mortgaged property"" in Section 60 and the absence of

corresponding words in Section 60 necessarily lead to any such conclusion as is contended for by the learned vakil. These words had to be

inserted in Section 67 in order to indicate that the power given u/s 93 of the Transfer of Property Act to the mortgagee as defendant to apply for

sale of the property in a mortgagor''s suit for redemption ought to be exercised in the same suit by the defendant-mortgagee, if he wants a sale of

the property for realizing his amount and that he could not reserve it for a fresh suit as an optional remedy which he might or might not take

advantage of in the mortgagor''s suit. It will be seen that u/s 93, paragraph 2, Order XXXIV, Rule 8, Clause (4) the order for sale at the instance

of the mortgagee-defendant is not an order passed as a part of the decree but an order passed on a separate application on the mortgagor

(plaintiff) committing default whereas Section 89 read with Sections 86 and 88 makes the order for redemption in the defendant-mortgagor''s

favour in the mortgagee''s suit for sale, a part of the original decree itself. So being made in the latter case a part of the decree itself, it was

unnecessary to state in Section 60 that when a decree has been made for redemption or for sale the mortgagor has no right to again redeem the

mortgaged property. After the passing of such a decree, as is said, the right had been adjudicated upon in the suit itself, and has become res

judicata whether the suit was a suit by the mortgagor for redemption or by the mortgagee for foreclosure or sale.

No doubt Rama v. Bhagchand ILR (1915) 39 Bom. 41 quoted by the appellant''s learned vakil is in his favour. But with the greatest respect, I

am unable to agree with that decision. As said in the critical notes in pages 7 and 8 of the Madras Law Journal, volume 29, in the words of Section

11, Civil Procedure Code, has not the matter directly and substantially in issue in the second suit, viz., the plaintiff''s right of redemption been in

issue, and also heard and decided in the former suit? What new point, right or question* has the Court to hear or decide in the second suit? It will

be impossible to contend that for the application of the rule of res judicata to suits (as distinguished from issues) the persons should on both

occasions be arrayed alike whether as the plaintiffs or as defendants."" The mortgagor was entitled in the former suit itself (of the mortgagee) to

redeem the property not only within the six months given in the decree to pay up the decree-amount but he was entitled under the CPC [as

decided in Adipuranam Pillai v. Gopalsami Mudali ILR (1908) Mad. 354 to pay it up even after the six months and at any time before a sale in

execution and so prevent a sale. The Court need not be solicitous to help a negligent mortgagor at any cost. The fact that the mortgagee has to

bring a suit for sale within twelve years of the date when the mortgage money became payable, whereas a mortgagor has got sixty years under

Article 148 for his suit for redemption is not a sufficient or logical ground for allowing the mortgagor to obtain a fresh decree for redemption in his

own suit after he had obtained one decree already in the mortgagee''s suit for sale.

In the result I would dismiss the Second Appeal with costs.

Napier, J.

I agree. In Vedapuratti v. Vallabha Valiya Raja ILR (1902) Mad. 300 the late CHIEF JUSTICE stated the proposition thus. The matter in issue

in a redemption suit is aye or no: ""Is the mortgagor entitled to the decree which if he succeeds the Court is required u/s 92 to make?"" In my view

the same matter is in issue in a mortgagee''s sale suit whether the suit be under English Law or the Transfer of Property Act and whatever

difference in form has been made by the provisions in the new Code. In that view this suit is res judicata and the appeal must be dismissed.