Vedapuratti and Others vs Vallabha Valia Raja and Others

This Judgment has been overruled by : Shri Ajit Chopra Vs. Shri Sadhu Ram and Others, AIR 2000 SC 212 : (1999) 8 JT 594 :

(2000) 124 PLR 19 : (1999) 7 SCALE 33 : (2000) 1 SCC 114 : (1999) 4 SCR 340 Supp : (1999) AIRSCW 4308 : (1999) 9 Supreme

297

Charles Arnold White, C.J.—The question which has been referred in this case is whether, notwithstanding the institution, of a suit and the

passing of a decree for redemption, a subsequent suit for redemption of the same mortgage can be brought when the decree in the former suit lifts

not been executed. I take it that for the purposes of this reference the words ""when the decree in the former suit has not been executed"" mean

when the order provided for by Section 93 of the Transfer of Property Act for foreclosing the right to redeem, or for sale, as the case may be, has

not been made.

The view which has been generally adopted by this High Court, though the decisions are not altogether uniform, is that a second suit will lie. The

Bombay and Allahabad High Court have held otherwise.

The answer to the question appears to me to depend not upon whether or not at the time of the bringing of the second suit the relation of

mortgagor and mortgagee subsists between the parties, but upon whether, assuming that the right subsists, the mortgagor is precluded, by the

operation of the doctrine of res judicata by reason of the adjudication which lie has already obtained, from bringing a second suit.

On the construction of Sections 92 and 93 of the Transfer of Property Act, it is perfectly clear that the equity of redemption remains

unforeclosed and the relation of mortgagor and mortgagee continues until the order absolute which is contemplated by Section 93 is made. Section

92 requires the Court if the plaintiff succeeds (i.e., if the plaintiff establishes that he is entitled to the decree which by Section 92 the Court is

empowered to make) to order that, ii the plaintiff pays in pursuance of the order of the Court, certain things shall be done, and that if he does not

pay, certain legal consequences shall ensue. Section 93 provides that, if: payment in pursuance of the order of the Court has not been made, the

defendant may apply, and the Court shall order, that the mortgaged property be sold or the plaintiff''s right to redeem be foreclosed, as the case

may be and the section expressly enacts that on the making of an order under the section the right to redeem and the security shall both be

extinguished. If the right to redeem is only extinguished when an order is made u/s 93, it follows that the right is a subsisting right until the order is

made. It does not, however, follow that the right is enforceable by means of a second redemption suit. It seems to me that though the right subsists,

the remedy is barred by Section operation of the rule of law which is embodied in 92 of the Code of Civil Procedure. The legislature has laid down

what is the matter in issue in a redemption suit. In order to succeed, the mortgagor has to show that he is entitled to a decree ordering that if he

pays off the mortgage debt in pursuance, of the order of the Court, the mortgagee shall, re-transfer the property and if necessary, put him in

possession?. The matter in issue is-aye or (sic)�is the mortgagor entitled, to the decree which, if lie succeeds, the Court is required by Section

92 to make? The question whether a decree u/s 92 operates as res judicata as a final adjudication on the matter in issue between the same parties

is, as it seems to me, entirely different from the question whether such a decree is in itself capable of execution without the order absolute which is

contemplated by Section 93 having been made.

As regards the authorities, the view which has usually prevailed in this Presidency, as already observed, has been that a second suit will lie.

In the cases reported in Sami Achari v. Somasundara Acari ILR 6 M. 119; Periandi v. Angaypa ILR 7 M. 423 and Karuthasami v. Jagannatha

ILR 8 M. 478where it was held that a second suit would lie, the decree in the first suit contained no direction that in default of payment by the

mortgagor the equity of redemption should be foreclosed. In the case in which the present reference has been made the decree directed (the

mortgage being a usufructuary mortgage) that if the mortgagor failed to pay in pursuance of the order of the Court property should bf sold.

Possibly the present case may be distinguished from the earlier authorities upon this ground, but it seems to me that so far as the question of res

judicata is concerned, it is immaterial whether or not the decree in the first suit directs that if the mortgagor does not pay as ordered by the Court

the equity of redemption should be foreclosed or the property should be sold. The basis of the decision in Periandi v. Angappa ILR 7 M. 423 and

in the later Madras cases in which the same view was adopted, was that at the time the second suit was brought the relation of mortgagor''and

mortgagee still subsisted. But, as 1 have said the question is not what are the rights of mortgagor, but what, in the events which have happened, is

the legal remedy which is open to him to enforce these rights. In Ramunni v. Brahma Dattan ILR 15 M. 366 the question again came up for

consideration and was fully discussed by Sir Muttusami Aiyar J., and Mr. Justice Best, who re-affirmed the view adopted in the earlier Madras

cases and dissented from that of the Bombay High Court in Gan Saxant Bal Savant v. Narayan Dhond Savant ILR 7 B. 467. Sir Muttusami Aiyar

observes that the Madras decisions are more consistent with the scheme of the Transfer of Property Act, while the Bombay decisions introduce

the doc- '' trine of constructive foreclosure founded on the plea of res Judicata. This observation appears to have been made with reference to the

Bombay decision reported in Malaji v. Sahgoji ILR 13 B. 567. I agree that any doctrine of constructive foreclosure is foreign to the scheme of the

Transfer of Property Act. (As a matter of fact the Transfer of Property Act did not apply in Bombay at the lime these two cases were decided).

As regards the earlier Bombay case to which 1 have referred, the judgment of Sir Raymond, West is not based on any such technical ground but

on the general principles of the law of res judicata. The precise point came before a Division Bench in Ramasami v. Sami ILR 17 M. 96 where it

was held that a second suit for redemption would not lie. I agree with the conclusion at which the Court arrived, but with all respect to the learned

judges who decided that ease, it seems to me that the matter was res judicata, not because the decree u/s 92 became final at the expiry of the time

fixed for payment thereby, although no order had been made u/s 93, but because the matter in issue became res judicata as between the parties

from the time the mortgagor''s right to redeem was adjudicated, on by a decree made u/s 92. In the Full Bench case, Vallabha Valia Rajah v.

Vadapuratti ILR 19 M. 40 the question referred was whether, after the expiration o[ the time mentioned in the decree and before any order for

sale, the Mortgagor is precluded from redeeming the property. The actual point decided was that after the expiration of the time mentioned in the

decree and before any order for sale, it was not open to the plaintiff to apply for execution of the decree. The question now before us was only

dealt with incidentally in that case, and the decision cannot be put higher than that the learned judges dealt with the case before them upon the

assumption that a second suit will lie, and that the earlier Madras case, assuming them to be good law, show that the mortgagor who .has allowed

the time fixed for payment to expire, is not without a remedy. It is to be observed that in the case which came before the Full Bench there had been

no formal application for au extension of time, and the question whether there is power to extend the time on the application of the mortgagor after

the expiry of the time fixed, and without any application foe sale or foreclosure being made by the mortgagee, appears to be still open so far as the

decisions of this High Court are concerned. In Bombay it has been expressly held that under the proviso to Section 93 of the Act, an application to

extend the time for redemption fixed by the original decree may be made at any time before the order absolute is made ILR 22 B. 71. In the case

reported in Nainappa Chetty v. Chidambaram Chetty ILR 21 M. 18 a Division Bench again adopted the view which has usually prevailed in this

Court and held that, inasmuch as the relation of mortgagor and mortgagee had not been put an end to, a second suit would Ho. The learned

judges, how-over, were of opinion that though the right of the mortgagor for a decree u/s 92 was Mot res judicata, the findings in the previous suit

as to the amount of the debt and the extent to which it bound the estate were res judicata. With all deference it; seems to me that for the purpose

of the question of res judicata, it is difficult to make a valid distinction between the findings of fact as to the conditions upon which the mortgagor is

entitled to redeem and the adjudication in law that the mortgagor is entitled to redeem on complying with certain prescribed conditions.

As regards the Bombay authorities I have already referred to Gan Savant Bal Savant v. Narayan Dhond Savant ILR 7 B. 467 and Malaji v.

Sagoji ILR 13 B. 567. As regards the latter case, it is not necessary to express an opinion as to whether, in so far as the decision goes beyond the

point now before us, the ease was rightly decided.

As regards the Allahabad High Court, the question was considered by Sir John Edge and Mr. Justice Blair in David Hay v. Razi-ud-din ILR 19

A. 202 and by Sir Arthur Strachey and Mr. Justice Knoxin Dudh Bahadur Rai v. Teh Narain Rai ILR 21 A. 251. In the former ease the learned

judges expressed the view that a second suit was precluded by Section 13 of the Civil Procedure Code.

In the latter ease it was hold that the dismissal of a suit for redemption on the ground that the mortgagor had not prior to its institution paid or

tendered the mortgage money at a time authorized by the deed, did not operate as foreclosure or res judicata so as to bar a second suit. It seems

to me that this case may be distinguished on the short ground, that the cause of action in the second suit was different from that in the first. Prior to

the institution of the first suit tender as authorised by the deed had not been made. Prior to the institution of the second suit such tender had been

made. Further, in the Allahabad case the mortgagor''s suit had been dismissed, whilst in the present case the mortgagors obtained the decree for

which lie sued. It may well be that the English rule that a suit for the redemption of a legal mortgage which is dismissed for any reason except want

of prosecution operates as a decree for foreclosure see Marshall v. Shrewsbury L.R. 10 Ch. 250 has no place in the Indian law of mortgage. It'' it,

has not, the equity of redemption in such a case would remain unforcclosed, but, it does not follow that a mortgagor who has brought his suit and

failed can seek the aid of the Court by another suit for the purpose of enforcing his right. Still less does it follow when the mortgagor has brought

his suit and obtained an adjudication for foreclosure on payment, that a second suit is maintainable. As pointed out by Sir Arthur Strachey, the

incidents of a Welsh mortgage closely resemble those of a usufructuary mortgage under the Transfer of Property Act, and the learned judge himself

suggests that the decision in Curtis v. Holecombe 34 R.R. 305 (where the mortgagor filed a bill for the redemption of a Welsh mortgage and

obtained a decree) might lie analogous to a case where, as here, the plaintiff obtained the decree for which lie asked, though it was not analogous

to the case before the Allahabad High Court whore the plaintiff failed to obtain a decree. Moreover, Sir Arthur Strachey expressly distinguishes tin;

earlier. Allahabad decision Hay v. Razi-ud-din ILR 19 A. 202 upon the ground that in that case there was a prior decree for redemption. He

observes, ""It is sufficient to say that, in our opinion, the principle of Hay v. Razi-ud-din ILR 19 A. 202 should not be extended to a case where no

decree for redemption has been passed prior to the suit before the Court.

As regards the Calcutta High Court, the only two decisions to which our attention has been called which bear upon the point Siva Pershad

Maity v. Nundo Lall Kar Mahapatra ILR 18 C. 139 and Roy Dinkur Doyal v. Sheo Golam Singh 22 W.R. 172 appear to be in conflict.

For the reasons which I have stated, I think the answer to the question which has been submitted to us should be in the negative.

Davids, J.

The question is whether a mortgagor who has once obtained a decree for redemption can, under any circumstances, bring a second suit for the

same relief. The solution of the question seems to mo to lie in a nutshell. If the decree the mortgagor has obtained is a final decree as the majority of

this Court has held in the reference to the Full Bench in A.A.O. No. 156 of 1900 Since reported�Vide Mattikarjunadu Setti v. Lingamurti

Pantutu ILR 5 M. 244 a second suit must undoubtedly be barred as res judicata u/s 13 of the Code of Civil Procedure. If, as the minority of this

Court has held in the same reference, the decree the mortgagor; has obtained is only a preliminary decree, then the suit is still pending and a second

suit is debarred under suction 12 of the Code. On these grounds alone 1 would decide that no second suit is sustainable.

The particular reason for the opinion that a second suit for the redemption of a mortgage is admissible apparently is that the right to redeem

subsists apart from the decree for the whole period of sixty years during which a suit or suits for redemption may be brought. But if that argument

were sound any other right, for instance, the right to recover a debt, would also subsist until the period of limitation for bringing a suit to enforce it

had elapsed. There seems to ho no difference between the cases. I am not aware of any special sanctity about a right to redeem which places it on

a higher footing than any other legal right in respect to the enforcement of it by a suit. In my opinion, they are all subject to the same procession

law, namely, that once any right, has been enforced by a suit in which a decree has been obtained, the decree becomes the embodiment of that

right, and that right in its inchoate state is merged in the decree. If a second suit is allowable in any case, it must 1)0 allowable in all cases, and there

is no reason why if a second suit is allowed there should not be a third, a fourth or a fiftieth suit on the same cause of action so long as the cause of

action remained unbarred by limitation, hi the case of a right to redeem, such suits might be brought for 60 years from the date of the mortgage,

and if in any suit so brought the mortgage was acknowledged, as it could hardly fail to be, a fresh starting point for the sixty years'' limitation would

begin from the date of such acknowledgment, and the right to sue would thereby become in practice everlasting. 1 consider that this reduction ad

absurdum conclusively shows that no second or further suit lies in a case where there has once been a suit for redemption and a decree whether

preliminary or final has been obtained therein.

My answer to the reference would therefore be emphatically in the negative.

Bhashyam Aiyangar, J.

The circumstances which have led to the institution by the 1st respondent of this second suit for redeeming the mortgage of 1858 for the

redemption of which identical mortgage he had already obtained a decree in O.S. No. 3 of 1889 will be found fully set forth in the case reported in

ILR 19 M. 40. The mortgage being a usufructuary mortgage, the decree in O.S. No. 3 of 1889 did not provide for foreclosure of plaintiff''s right to

redeem in default of payment within the time fixed in the decree for redemption, but only provided for sale of the mortgaged property (vide last

paragraph of Section 92, Transfer of Property Act). It does not appear that plaintiff ever applied under the proviso to Section 93 for extending the

time fixed for payment; but without obtaining any such extension he unsuccessfully attempted to redeem and recover possession of the mortgaged

property by payment into Court after the day appointed. In Vallabha Valla Rajah v. Vedapuratti ILR 19 M. 40 it was assumed, following the

opinion expressed in the decision of this Court, in Elayadath v. Krishna ILR 13 M. 267 and Kanara Kurup V. Govinda Kurup ILR 16 M. 214

that the proviso was only intended to come into play when an application has been made by the mortgagee--the defendant--for the final order for

foreclosure or sale, to which lie may lie entitled under paragraph 2 of Section 98 (Transfer of Property Act). Such assumption is possibly due to

the circumstance that the proviso has been inserted in Sections 87 and 98 and not in 88 and 92. The recession for not inserting it in Sections 86

and 92 which relate to the passing of decrees in foreclosure and redemption suits respectively, seems to me to be obvious. If it was so inserted, the

order postponing the day fixed for payment will be one for amendment of decree and will have to be passed by the Court which gassed the

decree, either in the first instance or on appeal confirming, varying or reversing the original decree, whereas by inserting the proviso in Sections 87

and 93, the order postponing the date of payment will operate as an order passed in execution proceedings relating to the stay of execution of the

decree within the meaning of Section 244, Clause (c) of the CPC Hulas Rai v. Pirthi Singh ILR 14 A. 502; Rahima v. Nepal Rai ILR 14 A. 520

and can be passed by the Court executing the decree, though such Court may be different from the one which passed the decree. Though in regard

to the execution of a decree the initiative will have to be taken by the, party entitled to execute the decree, yet in regard to the stay of its execution,

the party against whom it maybe executed may take the initiative and apply for and obtain stay of execution in anticipation or apply for such stay

when motion is made for execution of the decree. Under the English law, as pointed out by Shephard, J. in ILR 19 M.40 the time for payment may

be extended either on the independent motion of the mortgagor--the plaintiff--or on the hearing of an application by the mortgagee - the defendant

- to make the foreclosure absolute Alden v. Foster 5 Beav 592 ; Jones v. Creswicke 9 Sim 307 and I entirely fail to see anything in the language of

Sections 87 and 93 of the Transfer of Property Act, to show that the salutary English practice was intended to be departed from and that the

proviso for, extension of the time fixed for payment cannot be availed of by the mortgagor unless and until an application is made by the mortgagee

for an order for foreclosure absolute or for sale, an application which, in the nature of things, can be made only after the period fixed for

redemption has expired. I can conceive of no intelligible reason for imputing such intention to the Indian Legislature. As observed in my judgment in

A.A.O. No. 156 of 1900 (written some days ago and before this reference came on for hearing though pronounced only to-day), the use of the

word '' postpone'' in the proviso to Sections 87 and 98 of the Transfer of Property Act, clearly indicates that, as a general rule, the application for

extension of the time fixed for payment is assumed to be made before the day fixed for payment and therefore, by the mortgagor, before the

mortgagee applies for an order absolute for foreclosure or sale. In the present case, the mortgagee not having chosen to apply--evidently because

he was in possession and the time fixed for redemption had expired--under paragraph 2 of Section 98 for an order that the mortgaged property be

sold, it was assumed that the mortgagor could apply for no extension of time and it was pointed out ILR 19 M. 40 that if the law as laid down in

the previous decisions of this Court I.L.R 6 M. 119 was good law, he was not without remedy and could bring a second suit for redemption. The

possibility of the mortgagor--the plaintiff--himself applying for an order for sale of the mortgaged property in pursuance of the decree which

directed sale of the property in default of payment within the time fixed was not considered. In a suit for foreclosure, the mortgagor--the

defendant--may under paragraph 2 of Section 88, apply for and obtain a decree for sale in lieu of foreclosure, though u/s 67 (Transfer of Property

Act) the mortgagor, as plaintiff, could bring no suit for sale, as he could in England u/s 25 of the Conveyancing and Law of Property Act, 1881.

Notwithstanding that Section 93 (Transfer of Property Act) deals only with a mortgagee''s application for an order for sale, it would on principle

seem that there could be no objection to the mortgagor applying for execution of the decree passed u/s 92 and obtaining an order for sale of the

mortgaged .property, the sale of which has been decreed under the last paragraph of Section 92 in case payment is not made on or before the day

fixed in the decree for redemption.

Turning now to the general question referred to the Full Bench - apart from the special facts of the case in which the question has arisen, I am

clearly of opinion that the present suit for redemption of the very same mortgage, for the redemption of which a decree had already been obtained

in O.S. No. 3 of 1889 is barred as res judicata by Section 13, Civil Procedure Code, and is also barred by Section 244, Civil Procedure Code,

notwithstanding that 7io order absolute for sale has been passed in the former suit.

In Kameswar Pershad v. Rajkumnri Ruttan Koer ILR 20 C. 79 the Judicial Committee of the Privy Council, adverting to Section 13, Civil

Procedure Code, held that neither the Procedure Code of 1877 nor that of 1882 introduced any new law, but only put into the form of a Code

that which was the state of the law at the time, and that the state of the law at the time was that persons should not be harassed by continuous

litigation about the same subject-matter. Though the wording of Section 13, Civil Procedure Code, is not as felicitous as one might wish, it virtually

reproduces the firmly established law of res judicata, viz., that a final decision by a Court of competent jurisdiction of a matter directly and

substantially at issue between certain contending parties, shall as a plea be a bar and as evidence be conclusive in any subsequent suit between the

same parties. Explanation IV to the section makes it clear that interlocutory orders or decisions, or preliminary decrees, if there be any such under

the Indian law, are not final decisions,'' within the meaning of the section, having the force of res judicata.

In addition to the cases of Ex parte Chinery 12Q. B.D.345 and Smith v. Davies 31 Ch. D. 595 which I cited in my judgment in A.A.O. No.

156 of 1900 ILR 25 M. 244 as explaining what a final judgment in law strictly is as distinguished from an ''order,'' I may refer to Daniel''s

Chancery Practice (6th edition), page 788, in which it is laid down that ''where a judgment does not adjourn the consideration of the cause, it is

said to be a final judgment and to the following extract from the judgment delivered by Story, J., in Whiting v. Bank of the United States, (decisions

of the Supreme Court, United States, America, 18 Peters at p. 15): - ""That depends upon this; whether the decree of foreclosure and sale is to be

considered is the filial decree in the sense of a Court of exiguity and the proceedings on that decree a, mere mode of enforcing the rights of the

creditor and for the benefit of the debtor or whether the decree is to be deemed final only after the return and confirmation of the sale by a decretal

order of the Court. We are of opinion that the former is the true view of the matter. The original decree of foreclosure and sale was final upon the

merits of the controversy. The defendants had a right to appeal from that decree, as final upon those merits, as soon, as it was pronounced in order

to prevent an irreparable mischief to themselves I Will the sale had been completed under the decree the title o!'' the purchaser tinder the decree

would not have been over thrown or invalidated even by a reversal of the decree and consequently, the title of the defendants to the lands would

have been extinguished; and their redress upon the reversal would have been of a different sort from that of a restitution of the land sold. In Ray v.

Law, 3 Canch 179, it was held by this Court, that a. decree for sale of mortgaged premise was a final, decree in the sense of the Act of Congress

upon which an appeal would lie to the Supreme Court. This decision must have been made on the general ground that a decree final upon the

merits of the controversy between the parties is a decree upon which a bill of review would lie without and independent of any ulterior

proceedings. Indeed, the ulterior proceedings arc but a mode of executing the original decree like the award of an execution at law."" It is therefore

abundantly clear that a decree for redemption passed u/s 92 (Transfer of Property Act) is a, final judgment or decision within the meaning of

Section. 13, Civil Procedure Code, and falls within the first part of the definition of ''decree'' in the Civil Procedure Code. Until the suit reaches that

stage, it can, u/s 873, Civil Procedure Code, be withdrawn with liberty to bring a fresh suit or u/s 375 be adjusted by any lawful agreement or

compromise in accordance with which a decree may be passed so far as it relates to the suit and issues may be amended or additional issues

framed u/s 149, Civil Procedure Code. Though in one sense, the suit is pending Satt v. Cooper 16 Ch. D. 51 Collinson v. Jeffery (1896) 1 Ch.

646 until the decree or judgment is worked out and satisfied, and proceedings in execution thereof are ''proceedings in suits'' (explanation to

Section 647, Civil Procedure Code), yet after the decree (vide Section 375 A, Civil Procedure Code) the suit cannot, unless the same be carried

and is pending in appeal, be withdrawn with liberty to bring a fresh suit nor superseded or varied by a compromise or adjustment except in one or

two particulars (Section 206, Civil Procedure Code). L presume that no one will seriously contend that a suit for foreclosure, sale or redemption

can be withdrawn with liberty to sue again, after decree has been passed under Sections 86, 88 or 92 (Transfer of Property Act).

In ILR 21 M. 18 while holding that a second suit for redemption was maintainable in accordance with certain previous decisions of this Court,

the decree in the first suit passed u/s 92 (Transfer of Property Act) was held to be a final judgment operating as res judicata as to the relation

between the parties, of mortgagor and mortgagee in respect of the subject-matter of the suit and also as to the amount due for redemption at the

date of the former decree. I should fully concur in the decision of this Court in ILR 21 M. 18 holding that in that wise a subsequent suit for

redemption was maintainable, if the decree in the former suit had been--as in fact it was not--a mere declaratory decree, not capable of execution,

establishing the relation of mortgagor and mortgagee and the state of the account between the mortgagor and mortgagee at the date of the said

decree, assuming that such a decree could have been passed.

If the order absolute for foreclosure or sale u/s 93 is alone to be regarded as the final judgment or decision in the suit, that alone can operate as

res judicata and the decree passed u/s 92 will have to be regarded simply as an interlocutory order or proceeding which cannot have the force of

res judicata. If this be the right view and if no order for absolute foreclosure or sale be passed, the suit will have to be regarded as still pending,

and Section 12, Civil Procedure Code, will operate as a bar to the trial of a second suit for the same relief between the same parties.

In Lockyer v. Eerryman 2 A.C. 519 on the authority of which it was held by the High Court of Bombay ILR 7 B. 467 that a decree for

redemption, mi default, of the decree-holder to pay the money within the time fixed in the decree, or if none be fixed, within the time nil owed by

law for execution of the decree, operates as n judgment of foreclosure and debars the mortgagor from afterwards bringing a second suit for

redeeming the same property--Lord Selborne laid down that ""when there is res judicata original cause of action is gone and can only lie restored

by getting rid of t lie res judicata."" Lord Blackbrun there explained the principle of res judicata as follows: ""When a competent tribunal having had n

case before, them have given a final judgment, it is rex judicata. I do not mean to express any opinion as to what ""would be a, sufficient ground to

re-open the case * * * *. The object of the rule of res judicata is always put upon two grounds--the one, public policy, that is the interest of the

Stale that there should be an end of litigation, and the other, the hardship on the individual that he should be vexed twice for the same cause.

Again, Lord Penzance, in his judgment in Kendall v. Hamilton 4 A.C. 504 says, ""when that which was originally only a right of action has been

advanced into a judgment of a Court of record, the judgment is a bar to an action brought on the original cause of action. The reasons for this

result are given by Boron Parke in King v. Huare 13 M. W. 494. He says ''The judgment is a bar to the original cause of action because it is

thereby reduced to a certainty and the object of the suit attained, so far as it can be at that stage and it would be useless and vexatious to subject

the defendants to another suit for the purpose of attaining the same result. Hence, the legal maxim ''Transit in res judicata the cause of action is

changed into matter of record which is of higher nature and the inferior remedy is merged in the higher.

The whole argument in support of the contention that a second suit, for redemption is maintainable in the absence of an order absolute for

foreclosure or sale proceeds upon the supposition that in spite of the express declaration (in Section 2(a) of the Transfer of Property Act) that

nothing therein contained shall be deemed to affect the provisions of any enactment not thereby expressly re-pealed, there is some magic in

Sections 80 to 98 of this Transfer of Property Act and in particular in the word'' ''absolute'' or'' absolutely'' therein occurring, which overrides the

fundamental principle of res judicata embodied in Section 18, Civil Procedure Code. Section 60 (Transfer of Property Act) defining the

mortgagor''s right to redeem specifies the actual remedies which ho is entitled to in exercising his right of redemption, the remedies, of course, being

such as he would obtain in enforcement or execution of the redemption decree. Similarly, Section 67 in defining the mortgagee''s right lo

foreclosure or sale specifies the remedy he is entitled to in exercising such right, i.e., an order that the mortgagor shall be absolutely debarred of his

right to redeem or an order that the mortgaged property be sold. Such definition of the mortgagor''s right of redemption and of the mortgagee''s

right of foreclosure or sale was relied on in the course of argument in A.A.O. No. 156 of 1900 as leading to the conclusion that the decrees

passed under Sections 86, 88 and 92 are only ''preliminary decrees'' or decrees nisi, and that the ''final decrees,'' capable of execution in the suits

are the orders passed under Sections 87, 89 and 93, respectively. In my opinion the inference to be drawn is just the opposite. If you want to

define the right which a creditor has against his debtor, you will have to say that he is entitled to be repaid the amount of the debt and not simply to

a decree against his debtor for such payment. Sections 60 and 67, therefore, declare what the mortgagor or mortgagee is actually to realize by

enforcing his right, the relief which he is entitled to by enforcing or executing the decree establishing his right. In the case of redemption, delivery

back of the mortgage deeds, possession of the mortgaged property and a re-conveyance are the relief�s (see Section 6"", Transfer of Property

Act) which the mortgagor obtains by executing his decree for redemption. As the provisions of the CPC are sufficient to work out a decree for

redemption, no special provisions for the same are made in the Transfer of Property Act, except for the mortgagor being put in possession of the

mortgaged property. Even this last seems superfluous (vide, Section 263, Civil Procedure Code); but, whether superfluous or not, the provision

made for it in the first paragraphs of Sections 87, 89 and 93 conclusively shows that those sections relate to the enforcement or execution of the

decrees passed under Sections 86, 88 and 92, and it is significant that Sections 87, 89 and. 93 do not provide for the passing of an order absolute

for putting the mortgagor in possession, bat only for the executive act of putting him in possession.

In the case of a foreclosure decree, there is nothing in the CPC as to the mode of enforcing the same. The second paragraph of Sections 87

and 93 (Transfer of Property Act) provide that the same is to be enforced by obtaining an order of Court debarring the mortgagor absolutely of all

right to redeem. This is the mode provided by the Transfer of Property Act, following the English Chancery Practice, for working out or executing

a decree for foreclosure passed u/s 86 or 92 (of the Transfer of Property Act) as the case may be. In addition to such order, it is provided that the

Court may enforce the decree, if necessary, also by delivery of possession of the property to the mortgagee (see end of the 2nd paragraph of

Section 87 and of the 3rd paragraph of Section 93) though the decree itself does not in terms provide for such delivery of possession as it does in

the case of delivery of possession to the mortgagor. I have already explained in my judgment in A.A.O. No. 156 of 1900, that an application made

u/s 89 or 03 for an order absolute for sale is only an application for execution of the decree for sale passed under Sections 88 and 92 and.

indicated the reasons for special provision being made in the Transfer of Property Act for the passing of such order for sale. Whether the decree

be in a suit for foreclosure 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 day fixed. But the Transfer of Property Act

does not provide for an application being made by the mortgagor, after such payment, for an order absolute for redemption, or for the passing of

any such order. This conclusively shows that the decrees passed under Sections 86, 88 and 92 are not '' preliminary decrees'' or decrees nisi,

which require to be perfected by being made absolute or ''Unconditional, on the fulfilment of a condition or contingency subject to which the

decrees were passed. But so far as the decree one for foreclosure or sale, provision is made for the mortgagee/applying for an order absolute for

foreclosure or sale as the case may be, to supplement the imperfect provisions to the CPC relating to the enforcement or execution of decrees.

Decrees for specific performance, decrees respecting rights of casement and similar decrees are often made conditional, but the are not the less

final judgments'' having the force of res judicata This, I venture to slate, is equally so under the English law and nil decrees whether conditional or

unconditional are to lie worked out and enforced in execution and the orders passed therefor are not to be regarded as the final judgment or

decree in the suits, but only as orders relating to the execution of the decree vide R.S.C. Ord. 42 (sic) 9; Ann. Pract: 1902, p. 571.

In Monkhouse v. Coorporation of Bedford 17 Ves. 380 the plaintiff-the mortgagee-having obtained the usual decree for foreclosure, at the

Rolls as mortgagee, and an appeal therefrom having been preferred to the House of Lords by the mortgagor, before the order for foreclosure

absolute was passed, a motion was made by the mortgagor--the defendant--before the lower Court to suspend, the execution of the decree until

six months after the appeal should have been heard. The lower Court m granting the application on certain terms stated as follows: ""This decree

must therefore lie taken to be right to the extent of letting execution upon it, unless the Court sees that if it turns out to be wrong the party cannot

be set right again."" It will be observed that in that'' case the decree from which an appeal was preferred to the Mouse of Lords was the usual

decree in an action by a. mortgagee for foreclosure or sale, corresponding to that under Cection 86 of the Transfer of Property Act and that it was

treated as the final judgment in the action and as one capable of being enforced by execution pending appeal see also Funch v. Shar 20 Beav. 355.

Similarly here also, pending'' appeals and second appeals, from the original decree, the Court whose duty it is to execute the decree may stay

execution of the same by postponing from time to time, under the proviso to Sections 87 and 93, the day fixed for payment. After the passing of

the decree referred to in Sections 80, 88 and 92, the cause is not adjourned for further consideration, but an order for foreclosure absolute or for

sale may, in execution of the decree, be, under the English law, obtained on application made ex parte, supported by an affidavit, by mortgagee or

his attorney, of due attendance at the place appointed for payment and of non-payment of the amount certified to be due (see Ann. Practice for

1902, p. 773) and under the Indian law, on a verified application made under Sections 230 and 235, Civil Procedure Code.

The conclusion I have arrived at both in the references made to the Full Bench in A.A.A.O. No. 35 of 1901 and A.A.O. Nos. 48 and 156 of

1900 ILR 25 M. 244 and in this case, as lo the scheme of the mortgage chapter in the Transfer of Property Act and its relation to chapter XIX of

the Civil Procedure Code, is, I venture to say, not only in strict conformity with the Transfer of Property Act which in this respect is substantially

the same as the English Chancery law--but also steers clear of the innumerable difficulties, as to the right of appeal, the period of limitation for

applications under Sections 87, 89 and 92 the Court which is competent to pass the orders therein mentioned, the Court fees payable in respect of

appeals, &c, which will result from the position taken by the Calcutta High Court that a decree passed under Sections 86, 88 or 92 of the Transfer

of Property Act is order a preliminary decree or decree nisi and that it is the order passed under Sections 87, 89 or 93 that constitutes the final

decree or decree absolute. In the view that the decrees under Sections 88, 89 and 93 are the final judgments or decisions in the suit, they will lie

appeasable as ''decrees'' according to the first part of the deli nit ion of ''decree'' in the Civil Procedure Code, and applications made under

Sections 87, 80 and 93 will be governed by Article 170 of the 2nd schedule to the Limitation Act and orders thereon can be passed by the Court

executing the decree and will be appeasable as orders passed u/s 244 (sic), Civil Procedure Code, comprised within I he second part, of the

delimitation of ''decrees'' in the Civil Procedure Code-subject according to the notification of the Government of India, to the payment of the fixed

Court lee prescribed by No. 11 of Schedule 2 of the Court Fees Act.

The learned Counsel for the respondent contends--and this is the contention principally relied on by him--that even if the decree passed u/s 92

in the former suit be regarded as the final judgment or decision within the meaning of Section 13, Civil Procedure Code, the right to redeem still

subsists, inasmuch as no order absolute for sale has been made u/s 93--which alone can extinguish that right--and that, therefore, the decree in the

former suit can be no bar to the mortgagor enforcing his right of redemption in the present suit, the relation of mortgagor and mortgagee still

continuing and the light of redemption being inseparable from such relation.

In support of this contention he relies upon the decisions of this Court, reported in ILR 6 M. 119 which led to the order of reference to a Full

Bench in this case, as they are in conflict with the decisions of the Bombay High Court in ILR 7B. 467 and of the Allahabad High Court in ILR 19

A. 263 and not reconcilable with the decision of this Court in ILR 17 M. 96 if the dictum of Shephard, J., in ILR 19 M. 51 that ''it would make no

difference whether or not the decree pleaded in bar contained a direction for foreclosure or sale'' wore sound. In the castes reported in 6, 7, 8, 15

and 21 Madras series--in all of which it was held that a second suit for redemption was maintainable--the decree in the first suit which was pleaded

in bar contained no directions for foreclosure or sale in default of redemption. In the first of these cases, the decree in the first suit was left

unexecuted for 15 years, but it was regarded in the events which have happened as a declaratory decree, though he was entitled under that decree

to recover possession on making a certain payment and the second suit for redemption which was based on the original mortgage was held

maintainable. In the second case, the execution of the decree passed in the first suit was barred by limitation, the second suit for redemption was

held maintainable on the ground that the relation of mortgagor and mortgagee still subsisted and the right to redeem was inseparable from such

relation so long as it existed. The same view was taken in ILR 15 M. 360. These decisions were followed in ILR 21 M. 18 but in all these cases

the decision proceeded expressly on the ground that the decree in the first suit which was pleaded in bar contained no direction for foreclosure or

sale in default of payment. But I agree with the dictum of Shephard, J., (in 19 M. at p. 51) already referred to that inasmuch as it is the order of

foreclosure absolute or sale that extinguishes the right of redemption and not the mere passing of the decree with a direction, for foreclosure or sale

in the event of nonpayment on or before the day fixed, it can make no difference whether the decree did or did not contain a direction for

foreclosure or sale. In the present case, tin decree in the first suit did contain a direction for sale in default of payment, but for the reasons already

stilted, the mortgagee, the defendant, did not choose to apply for nil order absolute for sale. This case is like that reported in ILR 17 M. 97 in

which it was 7held that a subsequent suit for redemption was barred by a decree for redemption in a former suit--which decree provided that in

default of redemption within the time limited thereby the right of redemption was to be foreclosed--though no order for foreclosure absolute had

been made u/s 93. Bat if the decisions, of this Court in the other cases are sound, (i.e., in 6, 7, 8, 15 and 21 Madras) the case in 17 Madras, and

the present case cannot be logically distinguished therefrom simply on the ground that in those cases the decree in the first suit contained no

direction for foreclosure or sale.

With all deference to the learned judges I find it impossible to adopt the reasoning on which the decisions of this Court in Section 7, Sand 15

Madras proceed and the conclusions arrived at therein. If those decisions are sound, there can be no limit to the number of successive suits for

redemption of the same mortgage and the fundamental principle on which the doctrine of res judicata is founded will have to be wholly ignored. If

the principle of those decisions be--as it must--that so long as the relation of mortgagor and mortgagee is nor extinguished by act of parties or by

order of Court under Sections 87, 89 or 93 of the Transfer of Property Act, or by Section 28 of the Limitation Act, the right of redemption is

inseparable from such relation and that, therefore, there can be no impediment to t he mortgagor''s bringing a suit for redempt on although lie had

already obtained a decree for redemption, it will necessarily follow that he can institute in succession as many suits as he chooses for redeeming

one and the same mortgage and the mortgagee as many suits as he chooses for foreclosure or salary for the right of redemption and the mortgage

security are not. extinguished until the passing of an order for foreclosure absolute or for sale. Even if the execution of the decree in the first suit be

not barred by limitation there will be nothing to prevent his instituting another suit for redemption, foreclosure or sale as the case may, be. And if he

can do so there will be nothing to preclude the defendant in the subsequent suit from implying, in execution of the decree in the former suit, for

redemption, or for an order for foreclosure absolute or for sale as the case may be, if the execution of the decree therein be not barred by the law

of limitation.

In considering'' whether the plea of res judicata, operates as a bar to the suit, the question is not whether the alleged relation of mortgagor and

mortgagee or any other legal relation between the parties to the suit subsists, but whether, assuming the same to subsist, the plaintiff is not

precluded from seeking to enforce his right by reason of his having already sued upon the same cause of action and obtained an adjudication which

it was competent for him to enforce and execute. If one obtains a mere declaratory decree establishing a certain right, of the nature contemplated in

Section 42 of the Specific Relief Act and thereafter brings a subsequent suit to obtain a relief consequent upon such right, the decree in the former

suit cannot as a plea be a bar to the subsequent suit, though as evidence it will b6 conclusive in his favour as to the right adjudicated upon therein.

But a person who has obtained a decree establishing his right and entitling him to the consequential relief, cannot again sue for the same but can

only work out his right and obtain the relief by executing, the decree. And Section 244, Civil Procedure Code, expressly prohibits a separate suit

for the purpose.

Applying this principle to a mortgagor''s right of redemption, we find a complete definition, of that right or cause of fiction in Section 60 of the

Transfer of Property Act. The former suit in the present case was founded upon that cause of action and after a decree had been given therein u/s

92 of the Transfer of Property Act, the ""original cause of action is gone and can only be restored by getting rid of the res judicata"" as observed by

Lord Selborne in Lackyer v. Ferryman, above referred to. The cause of action having thus been exhausted, there is no original cause of action,

either in whole or in part, on which the mortgagor can again sue for redemption. If he allowed the execution of that decree to become barred or

was otherwise unable to execute the decree by reason of his not complying with the terms of the decree, the original cause of action or any portion

thereof, will not thereby revive. Under the proviso to Section 93 of the Transfer of Property Act, it was, in my opinion, competent for him to obtain

postponement of the day fixed for payment of the money, provided ho satisfied the Court that there was good and sufficient cause for his not being

able to pay the amount on or before the day fixed. If he can be allowed to bring a fresh suit for redemption, this provision of the Transfer of

Property Act that the time for redemption could be extended only on good cause, will be indirectly evaded.

It is true that until there is an order for foreclosure absolute or sale the right of redemption is not extinguished and there was no such order in

the present case. That will not entitle him to bring a now suit for redemption, but lie can exercise his right of redemption under the decree, if he be

not barred by limitation, by obtaining a postponement of the day fixed for payment, if he makes out a good cause for such extension of time. That

the decree itself docs not operate to extinguish the right of redemption by efflux of the time limited in the decree, but such extinguishment is

postponed until the actual passing of an order for foreclosure absolute or sale, is really a concession in favour of the mortgagor so as to enable him

to obtain an extension of time on good cause shown, even after the expiration of the period fixed in the decree, whereas if the decree itself

operated so as to extinguish the right of redemption on the expiration of the period fixed in the decree, much extension cannot be made and, in fact,

if made, will be inoperative. Full effect is thus given to the provision made in the Transfer of Property Act in accordance with the Chancery

Practice in England, for extinguishing the right of redemption only on the passing of an order for foreclosure absolute or sale, the only difference

between the English and Indian laws being that under the former the order dismissing the suit for redemption in default of payment operates as the

order of foreclosure absolute here passed u/s 98 of the Transfer of Property Act.

In the case of mortgage-decrees there is provision made for extinguishment of the security and of the right of redemption) but in the case of

decrees in ejectment and other decrees there is no such provision, and Section 28 of the Limitation Act applies only to suits and not to the

execution of decrees. If the owner of property obtains a decree in ejectment against a trespasser or a tenant whose tenancy has expired, can he

bring nether suit in ejectment on his original cause of action as owner or landlord on the ground that his ownership has not been extinguished by the

decree in the former suit or by any order passed therein in a subsequent decree? If a mortgagor is to be at liberty to bring successive suits for

redemption subject only to the extraordinarily long period of limitation applicable to suits for redemption, it will be difficult to discover or suggest a

reason for denying such liberty to the owner of property who seeks to eject a trespasser subject, of course, to the comparatively short period of

limitation applicable thereto. There are numerous instances in which the right of action alone is extinguished or destroyed, though the right of

property to which it relates has not been extinguished. Thus if a suit is dismissed u/s 102, Civil Procedure Code, for default of plaintiff''s

appearance or the plaintiff withdraws the same (Section 373, Civil Procedure Code) without obtaining permission to bring a fresh suit on the same

cause of action, the right of action is extinguished and he is precluded from bringing a fresh suit on the same cause of action though his substantive

right of property may not be extinguished and the dismissal or withdrawal may not even operate as res judicata against him in respect of his right of

property. Similarly, if a plaintiff omits to sue in respect of any portion of his claim, he is precluded Section 43, Civil Procedure Code) from suing in

respect of the portion so omitted, though his right in respect of such portion may not be extinguished. I fancy that the result will be the same even if

the suit so dismissed or withdrawn or portion omitted is by a mortgagor or mortgagee as the case may be. Certainly the result must a fortiori be the

same if a decree has been given and thus not only has the original cause of action gone, but the decree also operates as res judicata in respect of

the right adjudged.

In regard to a mortgagee''s title in default of redemption by the mortgagor, the obtaining of an order for foreclosure absolute or of an order

dismissing the mortgagor''s suit for redemption (which has the effect of an order for foreclosure absolute) is necessary to perfect his title as owner

see .Dan. Ch. Pract. (6th edition) p. 1405; Press v. Coke 6 Ch. Ap. 645. Under the English law such an order operates as a '' conveyance on sale

and has to be stamped ad valorem as such (vide Sections 54 and 57 of the English Stamp Act, 1891, and suction 6 of the English Finance Act,

1898. In Wills v. Luff 38 Ch. D. 197 Chitty, J., says that after the passing of an order for foreclosure absolute, the action is at an end with the

exception of the settlement of a conveyance by the judge if the parties differ. Such a conveyance is exempt from the payment of ad valorem stamp

duty (proviso to Section 6 of the English Finance Act, 1898) if such duty had been paid upon the decree or order for foreclosure absolute. A

release by the mortgagor after judgment of foreclosure is equivalent to an absolute foreclosure by order Reynolds v. Perkins, Ambl. 565 and no

order of foreclosure absolute need be obtained. Under the Transfer of Property Act the order of foreclosure absolute passed in execution of the

decree operates judicially as an extinguishment of the right of redemption and as a transfer of property in execution of decree or order of a Court

[Section 2(d) of the Transfer of Property Act] and the title of the mortgagee as owner is thus perfected and completed. The effect of an order of

foreclosure absolute obtained by a legal mortgagee is to vest the ownership and beneficial title to the mortgaged land, for the first time, in the

mortgagee Heath v. Pugh (C.A.) 6 Q.B.D. 345 on appeal to the House of Lords 7 A. C. 235. Under the English Chancery Practice, even after

order of foreclosure absolute, the foreclosure can be re-opened on good and sufficient cause Ford v. Wastell 2 Ph. 591; Wills v. Luff 38 Ch. D.

197 Dan. Ch. Pract. (6th edition, p. 1406).

I shall tow proceed to consider some decisions of the other High Courts bearing upon the question now under consideration. In Chaita v.

Purum Sukh Agra H.C. Rep. 1867, p. 256 it was held by a Division Bench of the North-West Provinces High Court (Morgan, C.J. and Spankee,

J.) that when a decree for redemption is obtained but not executed within the prescribed period for execution, the mortgagee does not, by such

omission, cease to be the mortgagee, but the mortgagor or his representative may still maintain a fresh suit for redemption. In Doubee Singh v.

Jowkee Ram Agra High Court Rep. 1868, p. 381) it was held by a Full Bench of the same High Court (Morgan, C.J., Roberta, Pear von, Turner

and Spankee, JJ.) that when the nature of the decree is such that it could be executed, the decree-holder cannot bring a fresh suit, founded upon

the cause of action which has already been adjudicated upon and also upon the decree the execution of which was allowed to be barred by the

law of limitation. In Sheik Goolam v. Alla Rukhee 1871 P.H.C.R. 62 a Full Bench of the same High Court (Morgan, C. J., Rims, Turner, Spankee

and Turnbull, J.J.) following the last mentioned Full Bench decision, held that a mortgagor who had obtained a decree for possession of the

mortgaged property on the ground that the mortgage has been satisfied, but allowed the execution of the decree to become barred by limitation,

cannot maintain a subsequent suit based on his old title and be permitted to revert to the position which he held prior to the institution of the first

suit and to ask for remedy by a fresh suit. This was followed in 1882 by a Division Bench of the same High Court (Straight and Mahmood, JJ.) in

Aurud Singh v. Singh Prasad ILR 4A. 481 in which it was held that a mortgagor who had obtained a decree for redemption but has allowed the

execution of the same to become barred by limitation cannot bring a fresh suit to redeem the same mortgage. In Muhummad Sami-ud-din v.

Mannu Lal ILR 11A. 386 a Division Bench of the same High Court (Straight and, Brodhurst, JJ.) in 1889 held that the Pull Bench decision in

1871 North-West Provinces High Court Rep. p. 62 was not binding since the passing of the Transfer of Property Act and a second suit for

redemption was decreed. I need hardly say that there is nothing in the Transfer of Property Act which militates against the authority of the Pull

Bench decision, if it was good law--as in my opinion it was--before the Transfer of Property Act. But if the decision in I.L.R., 11 A. 886 was

based, as apparently it purports to be, on the ground that the former suit for redemption was premature inasmuch as, at the date of the former suit,

the usufruct had not liquidated the mortgage debt, and that, therefore, the term of the usufructuary mortgage had not expired, the decision would

probably be right. The same High Court (Edge, and Burkitt, JJ.) in David Hay v. Razi-ud-din ILR 19 A. 202 after reviewing all the previous

decisions of that Court, as well as the decisions of the High Courts of Madras and Bombay, held that a mortgagor whether under a simple or

usufructuary mortgage who had obtained a decree for redemption and allowed such, decree to lapse by reason of his not paying the decretal

amount within the time limited for payment by the decree, cannot subsequently bring a second suit for redemption of the mortgage in respect of

which such infectious decree had been obtained. The Full Bench decision of the same Court in 1871 was approved and followed as also the

decision of the Bombay High Court in ILR 13 B. 567. The decision in ILR 11 A. 386 was dissented from as also the decisions of this Court in 6,

7 and 15 Madras on the ground that'' the view of the law to be found in those cases is not supported by the law as administered in such matters in

England or the law as enacted in the Civil .Procedure Code or the Transfer of Property Act, and that the Full Bench decision in 1871 ""was not

affected by the Transfer of Property Act and is in harmony with that Act and is perfectly sound law."" It was further held that the allowance of a

second suit for redemption would be to go contrary to the principle of Section 244, Civil Procedure? Code, and that the fact that a mortgagor has

failed to comply with his decree for redemption within time cannot give him a fresh cause of action.

The question was again considered by a Division Bench of the same High Court Strachey, C.J. and Knox, J. in 1899, in Dondh Bahadur v.

Tek Narain Rai ILR 21 A. 251. In that case the simple question was whether a decree in a suit for redemption of a usufructuary mortgage, not

being n conditional decree for redemption u/s 92 (Transfer of Property Act) but simply dismissing the suit on the ground that the mortgagor had not

prior to its institution paid, or tendered the mortgage money at a time authorised by the mortgage deed had the effect of foreclosure or of res

judicata so as to bar a second suit for redemption which was brought after tender of the whole of the mortgage money at the time appointed in the

deed, between the dismissal of the first suit and the institution of the second. It was held - and if I may venture to say so rightly--that the second

suit was maintainable and that the decision in ILR 19 A. 386 was clearly distinguishable. The first suit having been dismissed as premature, whether

rightly or wrongly, on the ""round that the cause of action had not then arisen could be no bar to the subsequent suit which was brought after the

cause of action had accrued according to the decision in the former suit. The Chief Justice, however, proceeded to refer to the conflict of decisions

between the case in I.L.R 19 A. and the Full Bench decision of 1871 on the one hand and that in ILR 11 A. and the decisions of the Madras High

Court and a decision of the Calcutta High Court in 22 W.R. 172 on the other and observed that the proposition of law as enunciated in I.L.R., 19

A. cannot be regarded as absolutely settled law.''

Turning now to the decisions of the Bombay High Court, the case of Gan Savant Bal Savant v. Narayan Dhond Savant ILR 7 B. 467 is

exactly in point; and in fact it is stronger than the present case inasmuch as there the decree which was pleaded in bar of the second suit did not

direct foreclosure. West, J., in concurring with Kern-hall, J., that a decree for redemption, on default of the decree-holder to pay the money

declared to be due within the time fixed by the decree or if none be fixed within the time allowed by the law for execution of the decree operates as

judgment of foreclosure and debars the mortgagor from afterwards bringing a second suit to redeem the property, observes as follows: - ""It

follows then from the leading principle of res judicata that the same matter shall not be agitated again on the original ground so as to imperil the

stability of the decision formerly given. ''Where there is res judicata, the original cause of action is gone and can only be restored by getting rid of

the res judicata.'' The existence of a decree in plaintiff''s favour may seem not to be a good reason for depriving him of a right to sue and under the

Roman law the plea of res judicata could be met by a replication of ''res secundum se judicata,'' Under the English law also, a judgment, it is said,

is a bar only when it has negatived the right--per Bramwell, L.J., in Poyser v. Minors 7