- (1.) THIS is a second appeal filed on 9th September, 1963 against the order in appeal of the Revenue Appellate Authority dated 15-7-63.
(2.) THE facts in brief are that one Shri Uda s/o Rupa Jat of Singhpur had mortgaged his land to the respondent Jeetmal for Rs. 400/- under a registered deed on the 4th September, 1943. A suit for redemption of the suit lands was filed which was decreed but, for some reason or the other, the decree was not executed. In the meanwhile Uda soldi his right of redemption to Kishanlal appellant. Kishanlal, in St. year 1990, filed knottier suit for redemption. This case went upto the highest court of appeal in those days, namely, the High Court of Judicature, former Rajasthan and it was dismissed ultimately on the ground that u/s 47 of the Code of Civil Procedure a fresh suit was not maintainable when a decree passed in a previous suit had not been executed. Kishanlal, after the Rajasthan Tenancy Act had come into force, brought the present suit u/s 43 (2) read with Sec. 183 against the respondents. This suit was decreed in the trial court. An appeal was filed by the respondent Jeetmal which was accepted. Aggrieved by this order, the appellant Kishanlal has filed a second appeal before us. The main reason given by the learned Revenue Appellate Authority for upsetting the decision of the trial court can be reproduced in his own words: "it is true that u/s 60 of the Transfer of Property Act mortgagor has right to bring a suit for redemption of mortgage when the principle money has become due, except when this right is extinguished by the act of the parties or by the operation of law. Therefore, under this section if there still exist time limitation for filing a suit a subsequent mortgage suit is maintainable. The question is not in this case whether a subsequent suit is maintainable or not, but whether the judgment of the High Court in which the suit between the parties for redemption was dismissed operates bar for fresh suit. It is an admitted fact that prior to this suit a suit for redemption was brought and it was dismissed holding that the plaintiff has no right to file a suit. x x xx x x x x This court is subordinate to High Court, therefore, judgment of the former Rajasthan High Court is binding on this court, and even if this court may disagree with the reasoning of the High Court it has to abide by the judgment given by the High Court. If in that judgment suit for redemption has been dismissed this dismissal will operate as bar for filing a fresh suit. " He further repelled the argument that a suit for restoration of possession under sec. 183 of Rajasthan Tenancy Act is different from a suit for redemption on the ground that the cause of action arose not because the respondent had taken possession unlawfully but on account of the relationship of the mortgagee and the mortgagor. The order further states: "but when the relationship is extinguished by the judgment of the High Court no question of action under sec. 183 arises. Sec. 43 is for redemption of mortgage and when mortgagee has enjoyed the fruits of the mortgage property upto 20 years, he has to deliver the property back to the mortgagor and the mortgage money is deemed to be paid. Therefore, if a suit is to be brought under this section the relationship of the mortgagor and the mortgagee has to be proved which by operation of law has been extinguished. " He on this reasoning held that the suit even if it comes under sec. 183 read with sec. 43 was not maintainable. We have heard the counsel for the parties. The main issue as would be clear from the extracts quoted above from the order of the Revenue Appellate Authority was whether the relationship of a mortgagor and mortgagee stood extinguished as the mortgagor did not execute a decree passed in a previous suit. The execution of a decree, after it has been passed in favour of the mortgagor, is the remedy provided by law. The question, therefore, further boils down to whether on the extinction of this remedialy right has also extinguished in law. We shall examine this question in detail. The first point for consideration is the nature of a mortgagor's right in India. D. F. Mulla in his Transfer of Property Act states, after examining the English Law on mortgages, that the question what was the position of a mortgagor in India was examined by the Judicial Committee of the Privy Council and their Lordships referred to the cases of Vithal Narayan, (29 Bombay 391) Thethalan vs. The Eralpad Raja (40 Madras 1111), Bengal National Bank vs. Janki & Balakrishna Pal vs. Jagan Nath, and held that since the passing of the Transfer of Property Act, the distinction drawn in England between law and equity in such cases did not exist in India. "the Indian mortgagor, however, retains some rights, though the English rules of equity do not apply. He retains a right to reconveyance of the land and a right to transfer such right; by way of sale or second mortgage, and this right in India is a legal right. " Sir John Salmond in his classic book on Jurisprudence, while categorising two kinds of legal rights, namely, perfect and imperfect, defines a perfect right as one which is not merely recognised by the law, but enforced, He further says that in all fully developed legal systems, however, there are rights and duties which though undoubtedly recognised by the law yet fall short of this typical and perfect form. Examples of such imperfect legal rights are certain claims barred by lapse of time; claims unenforceable by action owing to the absence of some special form of legally requisite proof; claims against foreign states or sovereigns, as for interest due on foreign bonds; claims unenforceable by action as exceeding the local limits of a court's jurisdiction, such as claims in respect of foreign land; debts due to an executor from the estate which he administers. According to Salmond, "in all those cases the duties and correlative rights are imperfect, no action will lie for their maintenance; yet they are, for all that, legal rights and legal duties for they receive recognition from the law. The statute of limitations, for example, does not provide that after a certain time, a debt shall become extinct, but merely that no action shall, thereafter, be brought for its recovery. Lapse of time, therefore does not destroy the right, but merely reduces it from the rank of one which is perfect to that of one which is imperfect. It remains valid for all purposes, save that of enforcement. All these cases of imperfect rights are exceptions to the maxim, ubi jus ibi remedium. The customary union between the right and the right of action has been for some special reason severed, but the right survives". He further pointed out that for what purposes the law will recognise an imperfect right is a question relating to the concrete details of a legal system. But an imperfect right may be good as a ground of defence, though not as a ground of action (for instance un-registered deed of transfer u/s. 53 A of the Transfer of Property Act ). A mortgage or pledge remains perfectly valid, although the debt secured by it has ceased to be recoverable by action. An imperfect right may possess the capacity of becoming perfect. The right of action may not be non-existent, but may be merely dormant. An informal verabl contract may become enforceable by action, by reason of the fact that written evidence of it has since come into existence. Similarly, there can be no doubt about the fact that an imperfect right can be positively transformed into a perfect and enforceable right by change in the statute. The maxim ubi jus ibi remedium i. e. remedies and forms of action determining rights is not recognised in civilian law. It will thus be seen that a mortgage in the Indian law is a legal right, and even, if it may be admitted for argument's sake, that the right of enforcement of this legal right had been extinguished, it does not extinguish the right itself. In other words, the relationship between the mortgagor and mortgagee still subsists. The legal maxim "once a mortgage always a mortgage" illustrates it. The only manner in which mortgage is extinguished is given in proviso to sec. 60 of the Transfer of Property Act i. e. (1) by act of parties; and (ii) by decree of the court and by lapse of time (30 yrs. in mortgages) u. s. 28 of the Limitation Act. "act of parties refers to some transaction subsequent to the mortgage and standing apart from the mortgage transaction, otherwise it would be invalid as a clog on redemption. So abhorrent to law is a clog to redemption that in many cases even some acts of the parties are also not held to extinguish the mortgage. " "decree of a court' refers to only final decrees for foreclosure in mortgagees' suits under the Code of Civil Procedure, Order 34, rule 3 (2) and final decrees foreclosure in redemption under Order 34, rule 8 (3) of the same Code". It is obvious, that no decree for foreclosure has been issued in this case. The judgement of Udaipur High Court only bars a fresh suit for redemption. As stated above, it may have converted the enforceable mortgage into an imperfect right but it cannot extinguish the subsistence of the mortgage itself. That being the case, we may examine the effect of sec. 43 (2) of the Rajasthan Tenancy Act, and was inserted by sec. 7 of the Rajasthan Act XII of 1961 which says that a usufructuary mortgage of any land made before the commencement of the Act or in pursuance of the provision contained in sub-sec. (1) shall, upon the expiry of the period mentioned in the mortgage deed, or twenty years from the date of the execution thereof, whichever period is less, be deemed to have been satisfied in full, without any payment whatsoever by the mortgagor, and the mortgage debt shall, accordingly, be deemed to have been extinguished, and thereupon the mortgaged land shall be redeemed and possession thereof shall be delivered to the mortgagor free from all encumbrances. The only point for consideration would be whether at the time the appellant filed his suit, a usufructuary mortgage existed, in this land. If it existed the provisions of this section will follow. As we have discussed above, even though it may be admitted for argument's sake that the right to bring a fresh suit for redemption did not exist, the relationship of mortgagor and mortgagee did exist in the form of an imperfect right. This right, after the passing of this Act, became enforceable in another manner given in the Act. As a matter of fact, the main intention of the legislature in enacting this provision was to provide a remedy in cases where suits for redemption were either difficult or unenforceable. A number of authorities were cited before us by the counsel for both the parties. We shall try to discuss them though we may add that not many of the authorities cited bear exactly on the issue involved in this case. The first authority cited was 1961 RLW 664 (Govt. of Rajasthan vs. Sangram Singh) It was held therein that it was not always true to say that the law of limitation is only a law of procedure and does not bar the remedy altogether so as to destroy the right. It was a well settled proposition of law that the new law of limitation would not revive a barred right. This ruling was on Limitation Act and not on sec. 60 of the Transfer of Property Act. The two statutes are, obviously, different and thus Latio decidendi cannot hold good in a case such as the present one. 1957 Rajasthan 32) (Ambalal Jasraj vs. Ambalal Badarmal and others) however, examine the question in relation to sec. 60 of the Transfer of Property Act. The ratio decidendi in that case was that "sec. 60 and its proviso contain a general principle of law applicable to mortgages in this country, and they were not technical provisions which should be held to be applicable as a matter of statute only. That principle is this. The right to redeem is an incident of a subsisting mortgage and is inseparable from it so that the right is coextensive with the mortgage itself. Again this right subsists until it is properly and effectively extinguished and the extinguishment of the right of redemption can only take place either by the act of the parties concerned or by a proper decree of the court. But unless such extinguishment does take place, the right of redemption is not exhausted. It follows that such a right may then be established by another suit but provided, of course, it is filed within 60 years limitation prescribed by the Limitation Act, though a decree of redemption may have been obtained in an earlier suit and might have remained unexecuted or became barred by lapse of time. " We find that this authority lends support to our point of view. As a matter of fact, this principle of law is directly applicable to the facts of this case and the learned Revenue Appellate Authority perhaps did not follow it on the ground that the judgment of the Udaipur High Court barred any other view to be taken by it. We do not accept this proposition as the learned Revenue Appellate Authority was not a subordinate court to the Udaipur High Court. The judgment of that High Court could only have a persuasive effect and in view of the principle laid down in A. I. R. 1957 Raj. 321 (Ambalal Jasraj vs. Ambalal Badarmal) ruling he could better have followed this ruling. Another consideration which should have weighed with him was that before he could hold the present case as barred by the principle of res judicata, he should have determined whether the previous court was competent to try the present suit. The next authority cited was 1945 Bom, 307 (Maruta Babaji vs. Manohar ). The facts of that case were that in a suit for redemption a compromise was struck that the mortgage money should be paid in instalments, and if there was a default in two instalments the mortgage will be extinguished. It was held that a fresh suit for redemption after default has been committed by the mortgagor was not maintainable as the right has been extinguished. This authority is clearly distinguishable from the facts of the present case, because in that case, extinguishment took place because of the act of the parties themselves, namely, the agreement to deem it extinguished, if there were two defaults in payment of the mortgage money. The question whether a subsequent suit for declaration of status and ejectment u/s 88 and 183 of the Rajasthan Tenancy Act would be barred by the principle of resjudicata against a previous suit for redemption of mortgage had come up for discussion in this Board in Kapoor Chand vs. Soniya, R. R. D. 1960 page 149. It was held that "the relative rights and duties of owner and trespasser on the one hand and of mortgagor and mortgagee on the other, are wholly different and arise from different causes of action and cannot have the same origin". The present case stands at much firmer basis. In A. I. R. 1625 Allshabad 484, (Th. Rudrapl Singh vs. Matabadal Singh) it was held 'if the right of redemption still subsists, not having been extinguished either by an act of the parties or by an order of the Court a second suit for redemption would lie. The order that would extinguish the right of redemption need not be an order purporting to extinguish that right. All that is necessary to bar a second suit is an order of the Court which would have the effect of extinguishing the right of redemption. " The main point in this case is that the order of the court must clearly indicate that the right has been extinguished and not the remedy. This authority also seems to support the point of view taken by us. In A. I. R. 1961 Supreme Court 1419 Haridas vs. Ananth Nath a mortgagee obtained a decree for Rs. 500/- and interest and cost. The decree was made absolute and by sale in execution, the mortgagee recovered Rs. 4160/- For the balance of the decretal debt, the mortgagee obtained a personal decree under O. 34, R. 6 Civil Procedure Code for Rs. 2338/- and applied for execution. The mortgagor did not pay amount but filed another suit for reopening the preliminary decree and the final decree passed in the mortgage suit. It was held that this suit was maintainable. We are of the opinion that this authority is not applicable to the facts of this case.
(3.) VARIOUS other authorities AIR 1934 Cal. 282, AIR 1930 Patna, 585, AIR 1928 Cal. 717 were quoted before us. We find that these authorities only explain the principle of resjudicata and the facts in those cases are not applicable in this case. As a result of the discussion above, we think that the learned Revenue Appellate Authority, though having put the whole issue in its true perspective, as would be clear from the extracts given above, went wrong in holding that the relationship of the mortgagor and mortgagee was extinguished, because the decree in favour of Uda, the predecessor in interest of the appellant, had not been executed. He also went wrong in holding that the present suit u/s 183 read with 43 (2) of the Rajasthan Tenancy Act was not maintainable because the Udaipur High Court had held that a suit for redemption of the mortgage was not maintainable because of the unexecution of the decree. We, therefore, accept this appeal, set aside the order of the Revenue Appellate Authority and restore that of the trial court. .;