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Rajaram Vithal Sutar Vs. Ramchandra Pandu - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 467 of 1943
Judge
Reported inAIR1948Bom226; (1948)50BOMLR45
AppellantRajaram Vithal Sutar
RespondentRamchandra Pandu
DispositionAppeal dismissed
Excerpt:
transfer of property act (iv of 1882), section 60 - suit to redeem-abatement of suit on mortgagor's death-second suit to redeem by mortgagor's heirs-whether second suit competent civil procedure code (act v of 1908), order xxii, rule 9.;where a suit to redeem a mortgage abates by reason of the death of the mortgagor, a second suit brought by his heirs to redeem the mortgage is maintainable by virtue of section 60 of the transfer of property act, 1882, notwithstanding the provisions of order xxii, rule 9, of the civil procedure code, 1908.;ramji v. pandharinath (1918) 21 bom. l.r. 56 f.b., ramchandra kolaji v. hanmanta (1920) i.l.r. 44 bom. 939 : s.c. 22 bom. l.r. 939, shridhar sadba v. ganu mahadu (1927) i.l.r. 52 bom. l.r. 34 : s.c. 30 bom. l.r. 34, and raghunath singh v. hansraj kunwar..........period to the mortgagor within which he can redeem the mortgage. the mere fact that he files a suit to redeem and then either abandons or withdraws it will not deprive him of his right to redeem. it is only when there has been a decision that there was no mortgage at all that it necessarily follows that the right to redeem falls to the ground.our attention has been drawn to a recent decision of the madras high court, raju v. raghavayya [1945] mad. 803 where in a division bench of that court mr justice patanjali sastri seems to have taken a view contrary to the view taken by this court in the case i have just referred to. that bench held that section 60 of the transfer of property act does not override the provisions of order xxxiii, rule 1, sub-rule (3), of the code of civil.....
Judgment:

Chagla, J.

1. The facts leading up to this second appeal are that one Gamabai executed a mortgage on July 24, 1895, in favour of one Khandu. In 1903 Khandu filed a suit against Gamabai and her husband. This suit was filed on the allegation that the property had been sold to Khandu by Gamabai. Gamabai contended in that suit that, although in form it was a sale-deed, the document was really a mortgage. The Court accepted the contention of Gamabai, and a decree was passed on June 16, 1904, by which Gamabai was declared to be entitled to retain possession of the property, if she paid a specified sum of interest to Khandu. In default, Khandu was to get possession of the property as mortgagee.

2. In August 1904 Gamabai filed a suit for redemption. While the suit was pending, Gamabai died, and her heirs were not brought on record, with the result that the suit abated in June 1905. The present suit was filed by the grandsons of Gamabai for redemption, and the only question that survives in this second appeal is whether this suit is barred by reason of the fact that the earlier suits for redemption abated in June 1905.

3. Now, under Order XXII, Rule 9, 'where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.' It is contended by Mr. Shah that, inasmuch as both the suits were for redemption, they were on the same cause of action, and as the first suit had abated, the second suit does not lie.

4. Now, the Civil Procedure Code deals with procedure relating to all suits. There is a special law, which deals with rights of mortgagors and mortgagees, and that law is to be found in the Transfer of Property Act. Section 60 provides that a mortgagor has the right to redeem the mortgaged property after the principal money has become due, and the mortgagor either pays or tenders the amount due on the mortgage; and the proviso to that section states that this right continues so long as it has not been extinguished either by the act of the parties or by the decree of a Court. Before the Act was amended, the expression was 'order of a Court' instead of 'decree of a Court.' Therefore, Section 60 confers the right to redeem upon the mortgagor, and also provides that that right is to continue until one or the other of the two eventualities mentioned in the section takes place : one, the act of the parties, and the other, an order or a decree of a Court which extinguishes that right. Now, it is perfectly clear that when the suit abated, there was no express order of the Court extinguishing the right of redemption. Can it be said that the mortgagor could not enforce that right, because the second suit was barred under Order XXII, Rule 9? If the legislature in a piece of special legislation confers a particular right upon a party, it must intend that that right should be an enforceable right. Therefore, in our opinion, the general provisions of the Civil Procedure Code, as contained in Order XXII, Rule 9, are to that extent overridden by the specific provisions of Section 60 of the Transfer of Property Act. So long as the relationship of mortgagor and mortgagee continues, and so long as the right to redeem has not been extinguished by a decree of the Court, or by the act of the parties, the mortgagor is entitled to go to a Court of law to enforce his right. Of course, the position with regard to limitation is different, because the Indian Limitation Act expressly provides that the period of limitation for redemption suits is sixty years.

5. This High Court has consistently taken the view that so long as the right to redeem is not extinguished, as provided by Section 60 of the Transfer of Property Act, the mortgagor can enforce that right in a Court of law.

6. Sir Amberson Marten, Chief Justice, and Mr. Justice Crump were considering the dismissal of a suit for default, and the consequence following upon it under Order IX, Rule 9, in Shirdhar Sadba v. Ganu Mahadu 30 Bom. L.R. 34. It will be noticed that the consequence is the same as on an abatement of the suit, and that Bench held that the general terms of Order IX, Rule 9, do not override the specific directions of Section 60 of the the Transfer of Property Act, 1882. If the general terms of Order IX, Rule 9, cannot override the specific directions of Section 60, equally so the general terms of Order XXII, Rule 9, cannot override the specific directions of Section 60 of the Transfer of Property Act. We see no difference in principle between the decision in Shridhar Sadba v. Ganu Mahadu and the case we are considering now; and we are not satisfied by Mr. Shah's argument that that case was wrongly decided.

7. Then we have a full bench decision of this Court in Ramji v. Pandharinath (1918) 21 Bom. L.R. 56 . In that case the mortgagor had brought a suit for redemption, and obtained a decree nisi, which was not made absolute, and after the execution of the decree had become time-barred, the mortgagor brought a fresh suit for redemption. It was contended that the second suit was barred on the ground of res judicata both under Section 11 and Section 47 of the Code. Scott C.J. and Mr. Justice Macleod (Mr. Justice Shah dissenting) took the view that it was not so barred. Chief Justice Scott took the view that really in the two suits for redemption the issues are not the same, because what is to be decided in each case is what is the amount due which the mortgagor has got to pay in order to redeem the property. Sir Norman Macleod also seems to take the view that the cause of action in a subsequent suit for redemption is different from the cause of action in the prior suit, because he takes the view that the right to redeem is a continuing right, and the only question in issue, when the assistance of the Court is invoked, is the amount due at the time when the redemption suit is filed.

8. In Ramchandra Kolajiv.Hanmanta 22 Bom. L.R. 939. Sir Norman Macleod and Mr. Justice Heaton had to consider the consequence of a redemption suit being dismissed under the provisions of Order XXIII, Rule 1, and the subsequent suit filed for redemption; and Sir Norman Macleod says (p. 941):

So long as it had not been decided that there was no mortgage at all then the relationship of mortgagor and mortgagee existed. The law allows a particular period to the mortgagor within which he can redeem the mortgage. The mere fact that he files a suit to redeem and then either abandons or withdraws it will not deprive him of his right to redeem. It is only when there has been a decision that there was no mortgage at all that it necessarily follows that the right to redeem falls to the ground.

Our attention has been drawn to a recent decision of the Madras High Court, Raju v. Raghavayya [1945] Mad. 803 where in a division bench of that Court Mr Justice Patanjali Sastri seems to have taken a view contrary to the view taken by this Court in the case I have just referred to. That bench held that Section 60 of the Transfer of Property Act does not override the provisions of Order XXXIII, Rule 1, Sub-rule (3), of the Code of Civil Procedure. This view seems to be contrary to the current of authority consistently followed by this Court.

9. Mr. Shah has strongly relied on the decision of the Privy Council in Thakur Shankar Baksh v. Daya Shankar 36 Bom. L.R. 1189 . There the Privy Council held that the subsequent suit for redemption was barred, inasmuch as the earlier suit had been dismissed for default. In the first place, the attention of the Privy Council does not seem to have been drawn to the provisions of the law which corresponded to Section 60 of the Transfer of Property Act and the Privy Council has not considered that section at all. Further, it also seems that the Privy Council based its decision on the fact that in both the suits the amount which the mortgagor said he was liable to pay to the mortgagee was identical, and the reliefs were the same; and the only difference between the two suits was that in the first suit the plaintiff asked for a sub-proprietary right, and in the latter for a superior proprietary right; and the Privy Council said that this difference did not make any difference as regards the cause of action.

10. But there is a later decision of the Privy Council, which seems to support the view taken by this Court, and that is the decision in Raghunath Singh v. Hansraj Kunwar 36 Bom. L.R. 1189. In that case a decree for redemption was passed in 1896, and it provided that, if the mortgagor failed to pay in accordance with the terms of that decree, his case would stand dismissed. The mortgagor did not pay the amount of the decree, and the mortgagee continued to remain in possession. In 1924 the mortgagor filed a fresh suit to redeem the property. Three contentions were taken up by the defence. The first was that the suit, though in form a redemption suit, was in reality an application to enforce an old decree, and that the execution of that decree was barred by limitation. The second was that the decision in the former suit operated as res judicata under Section 11, and the third was that no payment having been made under the old decree, the former suit stood dismissed, with the result that the mortgagor's right to redeem became extinguished under Section 60 of the Transfer of Property Act. In the first place, it is important to note what their Lordships thought of the two suits. According to them, the issues in the two suits were entirely different. In the first suit the issues were (1) whether the mortgagors were then entitled to redeem; and (2) the amount then to be paid if redemption then took place; and the issues in the subsequent suit were (1) whether the right to redeem existed at the time of the suit, and (2) the amount to be paid if redemption took place at the time of the subsequent suit. Their Lordships of the Privy Council further pointed out that, unless they were satisfied that the decree in the first suit extinguished the right to redeem, no question of res judicata Would arise. Therefore, what their Lordships proceeded to do was to construe the decree in order to determine whether under the provisions of that decree the right to redeem had been extinguished, and having construed that decree, in their opinion, the right to redeem was not extinguished; and, therefore, no question of res judicata arose. The following passage from the judgment of the Privy Council is very pertinent (p. 369):

The right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose, and strictly complied with. In the present case the only basis for the claim that the right to redeem has been extinguished is Section 60; but in their Lordships' view the old decree cannot properly be construed as doing that which it does not purport to do-namely, as extinguishing the right to redeem.

11. Therefore, it is clear from this decision that the right of redemption cannot be taken away from the mortgagor, except in the manner and to the extent provided by Section 60 of the Transfer of Property Act. We are of the opinion that the abatement of the suit is not a decree of the Court, which extinguishes the right of redemption. The procedural effect of Order XXII, Rule 9, cannot override the express provisions of Section 60.

12. We, therefore, hold that the plaintiff's present suit was maintainable, and that the decision of the lower Court was right. The appeal, therefore, fails, and must be dismissed with costs.


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