1. This was a suit brought by the plaintiff to redeem the mortgage dated August 1, 1879, in respect of the lands in suit in favour of Gangadhar Bhivrao, father of defendant No. 1, by Mahadeo Lakshman, predecessor-in-title of the present plaintiff.
2. On August 31, 1885, a decree was passed in suit No. 821 of 1883 brought by the original mortgagor for redemption. On July 8, 1914, the plaintiff purchased one half of the property from the daughter-in-law of the mortgagor, and brought the present suit on April 27,1926. The defendant contended that the original mortgage is merged in the decree in suit No. 821 of 1883, and, therefore, the present suit is barred by Sections 11 and 47 of the Civil Procedure Code. Both the Courts held that the present suit for redemption was maintainable.
3. It is urged on behalf of the appellant that the suit is brought on the decree in suit No. 821 of 1883 and not for the redemption of the original mortgage dated August 1, 1879. It is further urged that the suit is barred by Section11 and Section 47 of the Civil Procedure Code. And, lastly, it is urged that the lower Court erred in awarding immediate possession to the mortgagor in contravention of the provisions of Section 60 of the Transfer of Property Act.
4. On the first point on reading the plaint we think that the suit is brought for redemption of the mortgage of August 1, 1879, and is not based simply on the decree passed in suit No. 821 of 1883. The decision, therefore, of The Privy Council in Hari Ravji Chiplunkar v. Shapurji Hormusji does not apply to the present case.
5. The next question is whether the second suit for redemption is maintainable. According to the decision of the full bench in Ramji v. Pandharinath ILR (1918) 43 Bom. 334, 21 Bom. L.R. 56., a second suit would be maintainable unless it appears from the previous decree that the relationship of mortgagor and mortgagee is extinguished. In Hanmant Anant v. Shidu Shambhu ILR (1923) 47 Bom. 692, 25 Bom. L.R. 358 where an application for execution was allowed to be turned into a suit, it was held that the previous decree did not put an end to the mortgage, the relationship of mortgagor and mortgagee still continuing to exist between the parties, and only the mortgage amount, which was previously in dispute, had been settled, and that the application for execution which was allowed to be converted into a suit was within time, and that Article 148 would apply to such a suit. The question was recently considered in Badruddin v. Sitaram : AIR1930Bom401 , where it was held that a decree obtained by a mortgagee before the Transfer of Property Act came into force, to obtain the mortgage amount by sale of the mortgaged property which remained unexecuted, did not bar a subsequent suit by the mortgagor, instituted within the period of limitation, to redeem the mortgage. The reasoning underlying the decisions, which were considered in that case, was that a second suit would be maintainable if on the construction of the decree the relationship of the mortgagor and mortgagee was not put an end to.
6. It is urged on behalf of the appellant that the present case was under the Dekkhan Agriculturists' Belief Act, and, therefore, according to the remarks of Shah J. in Eamji v. Pandharinath (1918) I.L.R. 43 Bom. 334, 21 Bom. L.R. 56, the previous decree was executable and the second suit would be barred under Sections 11 and 47 of the Civil Procedure Code. We are bound, however, by the decision of the majority of the Judges constituting the full bench in Eamji v. Pandharinath. It appears that when the case was heard by the division bench in Ramji v. Pandharinath ILR (1918) 43 Bom. 477, 21 Bom. L.R. 82, it was held that where a decree in a redemption suit under the Dekkhan Agriculturists' Relief Act provided that on mortgagor paying a certain amount within twelve months he would be entitled to redeem or in default the mortgagee should recover the amount by sale of the mortgaged property, it was substantially a decree nisi and was not one of the variants permitted by Section 15B of the Dekkhan Agriculturists' Relief Act, 1879, and a second suit for redemption was maintainable. In the case of Ramji v. Pandharinath it was held by the full bench that a mortgagor, who brought a suit for redemption and obtained a decree nisi which neither the mortgagor nor the mortgagee applied to be made absolute, can, after the execution of the decree is time barred, bring a second suit for redemption. It was subsequently found that the previous redemption decree was a decree under the Dekkhan Agriculturists' Relief Act, and it was treated as a decree nisi, as distinguished from an instalment decree under Section 15B dealt with in Kashinath Vinayaak v. Eama Daji ILR (1916) 40 Bom. 492, 18 Bom. L.R. 475, although there was a clause in the decree that on default of payment the mortgagee might recover the amount by sale of mortgaged property. In Hanmant Anant v. Shidu Shambhu ILR (1923) 47 Bom. 692, 25 Bom. L.R. 358 the previous decree for redemption was passed in 1886 before the Transfer of Property Act was made applicable to the Bombay Presidency and a second suit was held maintainable, the real test being whether the previous decree put an end to the mortgage or the relation of mortgagor or mortgagee still continued. The case of Dinu bin Yesu v. Shripad ILR (1919) 43 Bom, 703, 21 Bom. L.R. 720 is distinguishable on the ground that the previous decree for redemption under the Dekkhan Agriculturists' Relief Act contained a provision that on the mortgagor's default to pay on a specified day, his right to redeem should be for ever barred. In the present case the previous decree for redemption was passed in favour of the original mortgagor and there was no default clause by which on default of payment on any particular date either the property was ordered to be sold or the mortgagor was for ever barred from his right to redeem. In Ramchandra v. Balbhim (1922) 35 Bom. L.R. 211, which was also a case under the Dekkhan Agriculturists' Relief Act, it was held that where the first redemption decree is passed in a mortgage suit under the provisions of the Dekkhan Agriculturists' Relief Act, the question whether the decree is a decree nisi or a decree which puts an end to the mortgage will always be a question for decision in each case when it comes before the Court. We think, therefore, that even though the previous decree was passed under the Dekkhan Agriculturists' Relief Act, it did not put an end to the relationship of mortgagor and mortgagee, and the present suit brought within the period of limitation is maintainable.
7. With regard to the last point that the lower Court ought not to have given immediate possession before the payment of the mortgage debt, the question is covered by the decision in Kisan,' das Bhakchand v. Muktabai kom Ramji (1888) P.J. 287 and the provisions of Section 15A of the Dekkhan Agriculturists' Relief Act.
8. We think, therefore, that the decision of the lower Court is right and this appeal must be dismissed with costs.
9. I agree and have nothing to add.