- (1.) THIS is a revision petition against the order of the learned Revenue Appellate Authority dated 16. 7. 64, whereby he accepted the appeal of the non-petitioner against the judgment and decree of the Asstt. Collector, Udaipur, dated 30. 2. 1964 and remanded the case to the trial court for proceeding on merits.
(2.) BRIEFLY stated the facts leading to this revision are that the non-petitioner filed a suit against the petitioners for redemption of mortgage and possession of agricultural lands relating thereto. The defendants put up the plea that a similar suit filed by the plaintiff previously had been dismissed and, therefore, no fresh suit was maintainable. The trial court accepted this plea of res judicata and dismissed the suit. Having felt aggrieved by this order, the plaintiff-non-petitioner filed an appeal before the learned Revenue Appellate Authority who came to the conclusion that the previous suit had not been decided on merits, but was dismissed on the basis of an application for withdrawal filed by the plaintiff-non-petitioner and, therefore, the question of res judicata did not arise. In coming to this decision, the learned Revenue Appellate Authority relied upon the rule laid down in Thota China Subba Rao vs. Mattapalli Raju (AIR 1950 Federal Court p. 1 ). Hence this revision petition. It is contended on behalf of the petitioners that O. 23, r. 1 (3) precludes a fresh suit. Under this rule, it is laid down that 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 liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. A perusal of the ruling relied upon by the learned Revenue Appellate Authority clearly shows that O. 23, r. 1 is not applicable to the present case. It was observed in that case that the right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage itself subsists. The right of redemption can be extinguished as provided in sec. 60 Transfer of Property Act, and when it is alleged to have been extinguished by a decree, the decree should run strictly in accordance with the form prescribed for the purpose. Unless the equity of redemption is so extinguished, a second suit for redemption by the mortgagor, if filed within the period of limitation, is not, therefore, barred. If the mortgagee fails to establish that the old decree has extinguished the right to redeem, there is no ground for saying that the old decree operates as res judicata and the Courts are prevented from trying the second suit under sec. 11 C. P. C. It was, further, observed therein that provisions like O. 9, r. 9 or O. 23, r. 1 could not debar the mortgagor from filing a second suit for redemption because, as in a partition suit the cause of action in a redemption suit, is a recurring one. The cause of action in each successive action, untill the right of redemption is extinguished or a suit for redemption is time barred, is a different one. In this case also, on the day fixed for arguments, the court was informed that the plaintiff was not proceeding with the case and the court interpreted it as a case not of withdrawal but of abandonment and dismissed the suit with costs. Thereafter, the plaintiff brought a second suit for redemption. It was held that the case did not fall under the provision of O. 23, r. 1 and, therefore, the second suit was not barred under that rule. Another authority cited before me is Ambalal vs. Ambalal (1958 RLW 30 ). The same view was taken in this case and it was held that in a case of redemption a fresh cause of action comes into play so long as the right to redeem (which is a matter of substantive right) remains in tact and has not been extinguished though it might have resulted in a decree in an earlier suit which for some reason or another remained unsatisfied. When one it is held that a second suit can be lawfully brought it must further be held that the comparatively subordinate considerations of procedural law, namely, that a second suit is barred by the principle of res judicata or that the mortgage has become merged in a decree and is, therefore, not available as the foundation of a second suit must, necessarily, give way to the paramount consideration that so long as the right to redeem is not extinguished effectively, either by act of parties or by an order of the court, the right to redeem must receive its natural and full play. In view of these authorities, I find that there is no substance in this revision petition. The petitioners cannot adopt the plea of res judicata, so long as the right to redeem is not extinguished effectively either by act of the parties or by an order of the court. In the result, therefore, this revision petition is hereby dismissed with costs. .;