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Mahadev Narayan Joshi Vs. Shridharbhat Gopalbhat Joshi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 43 of 1924
Judge
Reported inAIR1925Bom311; (1925)27BOMLR488; 87Ind.Cas.716
AppellantMahadev Narayan Joshi
RespondentShridharbhat Gopalbhat Joshi
DispositionAppeal allowed
Excerpt:
.....of 1879), section 15 d-several mortgages-suit by mortgagor for account under one mortgage-second suit by mortgagee on another mortgage.;the defendants mortgaged their lands to the plaintiffs in 1882, and in 1912 mortgaged one of the lands again to the plaintiffs. in 1917, the defendants sued for taking accounts of the mortgage of 1882 under the provisions of section 15 d of the dekkhan agriculturists relief act. on accounts being taken of the 188'3 mortgage alone, it was found that nothing was due under it. a redemption decree wan accordingly passed in that suit at the defendants' instance. in 1922, the plaintiffs sued to recover the amount due on the mortgage of 1912; but the defendants resisted the suit on the ground that it was res judicata-;that the bar of res judicata, did not..........judicata; and that the suit debt had been paid off by the income of the land from the date of the suit mortgage.2. the trial judge held that the claim was barred as res judicata on account of the decree in suit no. 325 of 1917.3. the facts are that the land in suit, survey no. 44, and another survey number were mortgaged, by the defendant's father to the plaintiffs' grandfather in 1882. the defendant filed suit no. 325 of 1917 under section 15d of the dekkhan agriculturists' relief act for accounts to be taken of what was due under that mortgage. the present plaintiffs, who were defendants in that suit, pleaded that there was a simple mortgage for rs. 200 passed in 1912 still outstanding, and that the then plaintiff would have to redeem that mortgage also in the suit. no issue was.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiffs sued to recover on a mortgage bond for Rs. 200 dated August 28, 1912, passed by the defendant to one Krishnaji Govind Joshi, the grandfather of the plaintiffs. The defendant contended that the plaintiffs had no right to file the suit; that the debt had not come to plaintiffs' share; that the land in suit had been mortgaged with possession in 1882 to the great-grandfather of the plaintiffs; that it had been decided in suit No. 325 of 1917 that this mortgage had been paid off; that the suit debt having not been claimed in that suit the present suit was barred by res judicata; and that the suit debt had been paid off by the income of the land from the date of the suit mortgage.

2. The trial Judge held that the claim was barred as res judicata on account of the decree in Suit No. 325 of 1917.

3. The facts are that the land in suit, Survey No. 44, and another survey number were mortgaged, by the defendant's father to the plaintiffs' grandfather in 1882. The defendant filed Suit No. 325 of 1917 under Section 15D of the Dekkhan Agriculturists' Relief Act for accounts to be taken of what was due under that mortgage. The present plaintiffs, who were defendants in that suit, pleaded that there was a simple mortgage for Rs. 200 passed in 1912 still outstanding, and that the then plaintiff would have to redeem that mortgage also in the suit. No issue was raised on the ' question. The Court took an account of the mortgage of 1882 and decided that nothing was due on the mortgage deed in the suit. Section 15D of the Dekkhan Agriculturists' Relief Act provides that at any time before the decree in the suit is signed , the plaintiff may apply to the Court to pass a decree for the redemption of the mortgage. Accordingly, as the plaintiff prayed for redemption and possession, and as the suit could be so converted at any time before the decree in the suit was signed, the Court made the following order :-' It is declared that the mortgage charge on the plaint properties held under the mortgage deed dated September 20, 1882, is fully satisfied, and that nothing remains due to defendants on that account. The plaintiff to recover immediate possession of plaint lands from defendants free of the above said mortgage charge.'

4. On these facts the learned Subordinate Judge said:-

Explanation V of Section 11 of the Civil Procedure Code does not also apply as it refers only to the relief claimed in the plaint. But the provisions of Section 11 are not exhaustive as laid down in Ramamurti Dhora v. The Secretary of State for India in Council I. L. R.(1911) Mad. 141 and Hukum Chand Boid v. Kamalnand Singh I. L. R.(1906) Cal. 927 . The matter can be res judicate even between co-defendants as suggested in Harri Annaji v. vasudev Janardan I. L. R.(1914) 38 Bom. 438 . Reading this decision with Explanation V of the section, I think it can be held that the relief claimed by the defendants in Suit No. 325 was refused by the Court, I find that the suit is barred by res judicata.

5. In appeal the learned appellate Judge said (referring to Suit No. 325 of 1917):-

In that suit the present plaintiffs pleaded that the mortgage bond (Exhibit 22) now in suit must be redeemed as well as the 1882 mortgage. As however they failed, to produce any evidence, the trying Court held that nothing was due to them and directed the return of both Survey Nos. to Shridhar ' free of the above said mortgage charge.'

6. That is not a correct exposition of what took place in the previous suit as appears from the judgment and the decree passed. The Court raised no issue on the question whether the mortgage of 1912 was outstanding, and could be redeemed in the suit, but took an account only of the mortgage of 1882, and directed the return of both survey numbers free of that mortgage charge, without making any reference to the mortgage of 1912. The appellate Judge went on to say :-

The wording of the decree would seem to favour appellant's contention that the later mortgage of 1912, the one now in suit, was not dealt with in Suit No. 325 of 1017. It has, however, been laid down in Babaji v. Hari, (1) that in case of there being several mortgage bonds the account (taken under Section 15 D, Dekkhan Agriculturists' Relief Act) must be taken of all of them in the same suit. Appellant himself drew the Court's attention to the existence of the 1912 mortgage but did not attempt to prove it, in Suit No. 326 of 1917, As he failed to prove it in that suit he cannot be allowed another opportunity of doing so now. His claim was advanced in Suit No. 325 of 1917. It was not proved by him and it must be held to have been rejected by the Court. I agree with the lower Court that the present suit is barred as res judicata.

7. The suit referred to by the learned Judge in Babaji v. Hari I. L. R. (1891)16 Bom. 351 was brought by the mortgagors of certain land against the mortgagee under Section 15 D of the Dekkhan Agriculturists' Belief Act for an account of the amount due, There were six mortgages in all and the aggregate amount secured was Rs. 5,750. In the course of the suit the plaintiff's pleader being doubtful as to the jurisdiction of the Court of the Second Class Subordinate Judge the pecuniary limit of which was Rs. 5,000, was allowed to amend the plaint and to withdraw the claim with regard to one of the mortgages for Rs. 900, thus reducing the aggregate amount to Rs. 4,850 On a reference made to the High Court for its opinion, the Court said (p. 852):-

We think that section 15 D of Act XVII of 1879, which provides for a suit of an exceptional character, was intended to give the mortgagor the power of obtaining an account of what was due on mortgage of his property, and, therefore, in case of there being several mortgage-bonds, the account must be take of all of them in the same suit, and if the total amount, as in the present case, exceeds Rs. 500, the case does net fall under Chapter 2 of the Act. If in exceeds Rs. 5,000 the First Class Subordinate Judge alone has jurisdiction.

8. It will be seen that that case does not touch the question of res judicata. The only way in which the principle of res judicata can be made applicable would be if Explanation IV to Section 11 was in point. It provides that 'any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.'

9. Now the defendant in the previous suit pleaded on the question whether an account should be taken of the mortgage of 1882, that an account should also be taken of the mortgage of 1912. The question in issue would have been whether the plaintiff was entitled to an account of the mortgage of 1882 only. That would not touch the question whether the plaintiff, the then defendant, was entitled to sue on the mortgage of 1912 It is difficult then to see how the principle of res judicata can apply to the present case. We do not know the circumstances which surrounded the trial of Suit No. 325 of 1917, or why no issue was rained on the defendant's plea. It may very well have been that the plaintiff did not wish the accounts to be taken on the basis .suggested by the defendant. However that may be, we cannot snow what the actual facts of the case were. We can only refer to the record before us.

10. In my opinion if a mortgage or executes several mortgages on the same property, and asks for an account on one mortgage under Section 15 D of the Dekkhan Agriculturists' Relief Act, although the mortgagee could ask that an account should be taken of all the mortgages existing on the property, so that the mortgagor would not be entitled to redeem except on paying what is due o all the mortgages, still, if the Court takes an account of the one mortgage only, it decides nothing with regard to the validity or the existence of other mortgages at the time when the account is taken. In my opinion, therefore, the decision of the lower Court was wrong and the appeal must be allowed. The case must go back to the trial Court for decision on the merits, The plaintiffs are entitled to their costs in this Court and in the Court below. All costs in the trial Court will be costs in the cause.

Cayajee, J.

11. I agree.


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