Harilal Kania, Kt. , C. J. - (1.)THESE are two appeals from one judgment of the High Court of Madras, disposing of two appeals brought to it from two suits filed in the Court of Coconada. In the High Court the appeals were heard together. The material facts lie in a small compass. As the parties in the two suits and appeals are differently arrayed, it will be convenient to refer to them as the mortgagor, the mortgagees and the lessections
(2.)ON January 2, 1914, the mortgagor acting for himself and as the guardian of his undivided minor son granted a mortgage of 51.20 acres of Inam lands along with other lands (which need not be hereafter referred to as they were later on disposed of by consent of parties) to secure a sum of Rs. 30,000 lent by the mortgagees. In respect of the suit lands it was a non-possessory mortgage. ON November 27, 1915, he executed another mortgage with possession of the suit lands for Rs. 4,000, but as the lands were in the occupation of the lessees under a lease for 15 years from F. 1320 to 1331 (1910-11 to 1924-25) at an annual rent of Rs. 1,000, it was stipulated that the mortgagees were to receive the rent from the lessees and to take possession of the lands on the expiry of the lease. ON July 31, 1916, there was a further mortgage of the suit lands along with two other properties to the mortgagees for Rs. 4,000. In that deed it was provided, inter alia, that on the expiry of the lease at the end of ff. 1834 (30th June, 1925), the mortgagees should take possession of the suit lands and pay a rent of Rs. 4,000 per annum from F. 1335. It was further provided that after payment of the revenue and taxes payable in respect of the lands, the balance should be applied first in reduction of the debt due under the mortgage of 1915, next in discharge of the principal and interest due under the bond of 1916 and thereafter towards the interest due under the first mortgage of 1914. The mortgagees were however to relinquish the lands irrespective of the terms of the lease, whenever the mortgagor paid the amounts due under all the mortgages.
As provided in the mortgage of 1915, the lessees paid the rent to the mortgagees till 1922 when the mortgagor alleging that the mortgages had all been discharged demanded rent from the lessees for himself. The lessees accordingly paid rent for the subssquent period to the mortgagor till the expiry of the leasts in June 1925. The lease was thereafter renewed by the mortgagor at first for one year and thereafter for 10 years by a registered document. In view of the repudiation of their rights, the mortgagees brought a suit against the lessees in 1926 to recover possassion and arrears of rent from 1922 till 1925 and for mesne profits thereafter till possession was given. They contended that the mortgages had not been fully dischicged and they were entitled to possession under the mortgages of 1915 and 1916. In this suit several interlocutory orders were passed under one of which the mortgagor was added as a party. The litigation appears to have taken an unduly long time and ultimately a preliminary decree for sale was passed on October 31, 1942. The mortgagees filed an appeal against that decree to the High Court.

As a counter-move to the mortgagees' suit, in 1929 the mortgagor filed a suit to redeem and to recover possession of the mortgaged properties, offering to pay what was due under the mortgages. After the hearing of the suit had proceeded to some extent, it was dropped as it was thought that the parties had settled their disputes. The compromise is now contended by the mortgagees to be evidenced by two documents dated November 7, 1932. The first document executed by the mortgagor is an agreemant in favour of the mortgagees. It stated that having regard to the fact that the debts due to the mortgagees under the different mortgages executed by the mortgagor cannot be fully satisfied from the properties and to prevent the mortgagees from recovering the balance from the other properties of the mortgagor and as the mortgagees not agreed to pay Rs. 100 at the time of the registration of the sale deed, the mortgagor had agreed to execute and give to the mortgagees at their cost a proper sale deed in respect of the said properties within three months from that date, so that it may not be necessary for the mortgagees to realise the amounts of their mortgage claims by instituting a suit to enforce the same. The second document, which is passed in favour of the wife of the mortgagor and is signed by the mortgagee, recites that all properties of the mortgagor had been mortgaged to the mortgagees with or without possession and the debts due to the mortgagees had remained unpaid. They were requesting the mortgagor to sell the properties to them as the value of the properties was not sufficient even to satisfy the mortgage debts. The wife of the mortgagor pleaded that having regard to the large amounts paid towards the mortgage debts, if the properties were sold to others, some amount would remain in the hands of the mortgagor. Since however she had caused an agreement to be executed by her husband to sell the properties to the mortgagees, the mortgagees agreed to execute in her favour for her maintenance and residence, immediately upon the mortgagor executing a sale deed in favour of the mortgagees, a gift deed of the properties mentioned in the schedule (which was one of the properties and a house covered by one mortgage) and deliver possession thereof to her, so that she may enjoy the same fully. Following the execution of these two agreements, the suit filed by the mortgagor was allowed to be dismissed with cost on November 9, 1932, and possession of the plot of land agreed to be gifted to the mortgagor's wife was given over. No registered deeds were ever executed as provided in both these two documents, nor was the sum of Rs. 100 paid to the mortgagor. As nothing was mentioned in those two documents about the possession of the suit lands, they continued to remain in the occupation of the lessees. It appears that notwithstanding these agreements, the mortgagor continued to receive from the lessees the rent reserved under the original lease, and in 1984 when the mortgagees alleged that no such agreement had been made, he applied to be made a party to the mortgagees' suit against the lessees. Strangely enough, a consent order was taken in that suit confining the trial to those issues which were originally framed on November 11, 1926, before the mortgagor was added as a party to the suit. Thereafter the mortgagor instituted original suit No.11 -of 1938 praying for redemption and claimed the benefit of the provisions of the Madras Agriculturists Relief Act; 1938. In that suit a decree for redemption on payment of Rs. 2,655-13-0, which was found due on the mortgages with interest and costs, was passed by the trial Court. From this also the mortgagees preferred an appeal to the High Court. We shall deal with the appeal arising out of. the redemption suit first, because both the appeals were allowed by the High Court on the ground that the mortgagor had lost his right of redemption.

(3.)IN the High Court the decree for redemption was challenged on the ground that the suit was barred under Order XXIII, Rule 1, of the Code of Civil Procedure, because the previous Suit No.53 of 1929 brought for the same relief was abandoned, without obtaining leave to file a second suit in respect of the same subject matter. It was argued that the equity of redemption was therefore extinguished. It was contended that the subject matter of the later suit was the same as the subject matter in the previous suit. IN the alternative, it was contended that the mortgagor having agreed under the document of November 7, 1932, to sell to mortgagees the mortgaged properties (including the suit lands) in satisfaction of the mortgagor's liabilities under the different mortgages and for an additional sum of Rs. 100, the equity of redemption was extinguished by the act of parties and it was immaterial if the parties had carried out or not the terms of the compromise. IN the further alternative it was contended that the compromise having been partly performed the same should be enforced under Section 53 (A) of the Transfer of Property Act and therefore the mortgagor was not entitled to claim redemption, although no sale deed in fact had been executed in favour of the mortgagees. The High Court accepted the first contention and allowed the appeals of the mortgagees. It did not consider it necessary to deal with the other two alternative contentions.
The relevant portion of Order XXIII, Rule 1, of the Code of Civil Procedure, on which the mortgagees relied, runs as follows : Order 23.1 (1) At any time after the institution of a suit the plaintiff may. . . withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied * * * * * it may. . . grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit is respect of the subject matter of such suit or such part of a claim. (3) Where the plaintiff withdraws from a suit or abandons part of a claim, without the permission referred to in Sub-rule (2), he. . . shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.