Knox, A C J -
(1.) The plaintiffs, who are now appellants, are the assignees of the equity of redemption over certain land situate in mauza Kopa, pargana Saidabad. They instituted the suit, out of which this appeal arises, and asked for a decree for enforcing the equity of redemption. Their suit has been dismissed, and the lower appellate Court has been guided to this decision by a precedent of this Court, David Hay V/s. Razi-ud-din (1897) I.L.R. 19 All. 202. The Bench of this Court before which this second appeal first came for hearing, having doubts as to the soundness of the view held in David May V/s. Razi-ud-din and it having been pointed out to them that there was a conflict of authority in the decisions of this Court regarding the point in issue, asked that the case might be referred to a Full Bench. What we now have to consider and determine is whether a mortgagor who has obtained a decree for redemption, which does not contain a provision that if payment is not made on the date fixed by the Court, the mortgagor shall be absolutely debarred of all right to redeem tin property, and who has not enforced that decree and has not paid in the decretal amount within the time can subsequently bring a second suit for redemption of the mortgage in respect of which such first decree was obtained. According to the decision in David Hay v. Razi-ud-din he cannot bring such a second suit. According to rulings of this Court prior in point of time to David Hay V/s. Razi-ud-din he can.
(2.) It has been found that in 1869 the plaintiff-appellant, Lala Sita Ram, and the ancestor of the other plaintiffs-appellants, did institute a suit for redemption of this very mortgage, and that they did obtain a decree for redemption, but never put it in force. The mortgage was a usufructuary mortgage. In coming to a decision upon this point, I do not propose to go into the various precedents that are to be found in the reports. Those have been very carefully considered and fully discussed by my learned brother Aikman, and I concur in the views he holds about them. I think it sufficient to consider the provisions of Act No. IV of 1832, which seem to bear upon this point. To my mind they return a sufficient and conclusive answer to the question referred. The first provision is that contained in Section 60, which lays down that "at any time after the principal money has become payable the mortgagor has a right, on payment or tender at a proper time and place of the mortgage money, to require the mortgagee to deliver the mortgage-deed, if any, to the mortgagor, and where the mortgagee is in possession of the mortgage property, to deliver possession thereof to the mortgagor." No limitation is put upon this right, with the one exception that it must not have been extinguished by act of the parties or by an order of the Court. In the present case there is no question as regards the act of parties. The only point which will hereafter have to be considered is, whether the right has been extinguished by an order of a Court. As it is common ground that the mortgagee has not up to the present asked for an order that the mortgaged property be sold, it is not necessary to consider the provisions relating to such a circumstance, and I pass on to Section 92, which directs that "in a suit for redemption if the plaintiff succeeds the Court shall pass a decree ordering that an account be taken of what will be due to the defendant, and that upon the plaintiffs paying to the defendant, or into Court, the amount so due upon a day to be fixed by the Court, the defendant shall deliver up to the plaintiff, or to such persons as he appoints, all documents in his possession or power relating to the mortgaged property, and shall retransfer it to the plaintiff free from the mortgage and free from all incumbrances created by the defendant or any person claiming under him, and shall, if necessary, put the plaintiff into possession of the mortgaged property." Such a suit for redemption the plaintiffs did bring in the year 1869. A decree was passed in their favour, ordering very much as has been sot out above. But whilst Section 92 of the Transfer of Property Act goes on to enact that the decree pissed in a case for redemption should direct that if payment of the amount found due is not made on or before the day fixed by the Court, the property was to be sold, the decree referred to in place of this ordered that if payment was not made, the judgment should, after the expiry of the time fixed in the decree, be considered as ma adum or annihilated. If the Court which passed it had followed the law, then according to Section 93 it was open to the mortgagee, when payment of the amount found due was not made, to apply for an order that the property or a sufficient part thereof be sold and the proceeds distributed as directed under Section 93." Section 93 goes on further to enact that on the passing of such an order the plaintiff's right to redeem and the security shall, as regards property affected by the order, both be extinguished. Putting aside any other provisions of the law, the clear words of these sections would seem to be that until a mortgagee has applied for an order of sale under Section 93, the plaintiff's right to redeem exists, and can at any time be enforced. There is a further clause in Section 93, which seems to corroborate this view, and which permits a Court upon good cause shown and upon such terms, if any, as it thinks fit, from time to time to postpone the day originally fixed for payment. Every such postponement would prolong the existence of the plaintiffs right to redeem. If it did not, it is difficult to assign any meaning or object to it, and this we cannot suppose of any piece of legislature.
(3.) As no application had been made by the mortgagees for an order for sale up to the 26 of May, 1896, when they filed the present suit, it would follow that unless the plaintiffs right to redeem be barred by some provision of law other than that Contained in the Transfer of Property Act, his right to redeem was not extinguished. It was unimpaired, and could be enforced by suit. In David Hay v. Razi-ud-din where the opposite view was held, it was admitted that there are cases which support this contention, namely, the cases of Sami Achari v. Somasundram Achari (1882) I.L.R. 6 Mad. 119 Periandi. V/s. Angappa (1883) I.L.R. 7 Mad. 423 Rammuni V/s. Brahma Dattan (1802) I.L.R. 15 Mad. 366 and also Muhammad Sami-ud-din Khan V/s. Mannu Lal (1889) I.L.R. 11 All. 286. The learned Judges, however, who decided the case of David Hay V/s. Razi-ud-din held that it was the intention of the Legislature as expressed in Section 92 and Section 93 of the Transfer of Property Act that there should be one suit only for a redemption. They do not point oat upon what portions of the sections above cited they held this view, and it must be remembered that in the case they then had to decide the decree under appeal did not specify what should take place in the case the mortgage money was not paid within the period limited in that respect. Otherwise it might be assumed that they based their judgment upon the concluding paragraph of Section 92. I need not consider here what would be the result if, in the case under appeal, the decree had been made in strict accordance with law and had provided that the property was to be sold. This point does not arise. The learned Judges in David Hay V/s. Razi-ud-din seem to have based their decision upon the reading they put upon Secs.92 and 93 of the Transfer of Property Act, the principles contained in Section 244 of the Civil P. C., and the fact that, the failure by a mortgagor to comply, whatever that may mean, with his decree for redemption within time, cannot give him a fresh cause of action. His original cause of action, they considered, was extinguished. It is difficult to understand how they held this in the face of the words contained in Section 93-- "the plaintiff's right to redeem shall be extinguished." These words would be pure surplusage if the cause of action merged in the decree, or if Section 13 of the Civil P. C. had any similar effect. On the contrary, it would appear that the words above quoted in Section 93 were purposely inserted in order to remove a particular case of a suit for redemption from objections which might be raised under Section 13 of the Civil P. C.. Again, as regards the difficulty felt in connection with the principles contained in Section 244 of the Code of Civil Procedure, it may be remembered that decrees in redemption suits differ from ordinary decrees, in that they contain provisions providing for a portion of them becoming incapable of execution under certain contingencies. By their own internal virtue, so to speak, they make it impossible for questions relating to the execution, discharge or satisfaction of the decree to arise, inasmuch as they provide that upon a decree-holder not making payment on a day fixed by the Court, all advantages which accrued to him, and which could be enforced by him under the decree, come to a complete end. In the present case, of course, the decree was of an extraordinary kind; but even so, the terms in which it was couched were of a nature which preclude any question arising of execution, discharge or satisfaction of that particular decree by the decree-holder. With due respect to the learned Judges who decided David Hay V/s. Razi-ud-din I cannot bring myself to believe that it was the intention of the Legislature as expressed in Secs.92 and 93 of the Transfer of Property. Act that there should be one suit only for redemption. The principles of Section 241 of the Civil P. C. appear to me to be excluded under the express words which allow the mortgagor's right to redeem to continue alive and operative until extinguished by an order under Section 93. It is true that, whew a Court has office adjudicated upon a mortgagor's right to redeem, so many of the issues as bore upon that, and were heard and determined, become res judicata and cannot be reopened; but unless there has been a determination that the mortgagor has no right to redeem, there would still remain one other issue in a subsequent suit which would not be res judicata, and which would have to be heard and determined. In a second suit for redemption there would always be the question to be tried whether the plaintiff has or has not a right to redeem reserved to him by law until the mortgagee has applied for an order for sale. This issue would naturally not have been, and could, not have been, in issue in the former suit, and could not therefore have been heard and determined. The Court would not be by Section 13 debarred from trying that issue. It has not, been suggested that there is any other order of the Court which stands in the way of the mortgagor's right to redeem. I am therefore of the tame opinion as my learned brothers, that in the present case the mortgagor could bring the second suit for redemption, and I concur with them in the order proposed. Banbrji, J.;