1. The appellants in this Letters Patent Appeal were the original defendants in Regular Civil Suit No. 6 of 1926 brought against them by the respondent, the original plaintiff, in the Court of the Second Class Subordinate Judge, at Panvel. The plaintiff prayed that an account may be taken from the defendants of the income of a certain property which had been mortgaged by the grandfather of the plaintiff to one Ibrahim walad Badruddin Mukhari since deceased who was the grandfather of defendants Nos. 1, 2 and 3 and the father of defendant No. 4. The plaintiff also prayed that the defendants may be ordered to give possession of the mortgaged property to him, or in the alternative, if for any reason the possession of the mortgaged property cannot now be given by the defendants to the plaintiff, the defendants may be ordered to pay to the plaintiff the market value of the property. The defendants by their written statement and a further supplemental written statement raised a contention that the original mortgagee had never been in possession and they (his heirs) have not since his death been in possession and that the original mortgagee had obtained a decree against the original mortgagor in Regular Civil Suit No. 465 of 1877 on the files of the Panvel Court in respect of the said mortgage transaction and that the present suit for redeeming the mortgage or for accounts was barred by res judicata.
2. At the trial a preliminary issue was raised on behalf of the defendants, viz., whether the present suit was barred by res judicata on account of the decision in Regular Suit No. 465 of 1877. The Subordinate Judge held that it was so barred and dismissed the plaintiff's suit with costs. From this decision the plaintiff appealed to the District Court at Thana. The District Judge reversed the decision of the trial Court and directed the suit to proceed according to law. The defendants filed an appeal from Order No. 4 of 1928 in this Court against the decision of the District Judge. That appeal was summarily dismissed by Mr. Justice Madgavkar. The defendants have filed the present Letters Patent Appeal from this order of dismissal of their Appeal from Order No 4 of 1928.
3. The only question we have to consider in this appeal is whether the suit is competent having regard to the decision in the previous suit.
4. The mortgage was executed by the plaintiff's grandfather in favour of the original mortgagee on December 21, 1865, to secure a sum of Rs. 1,100 advanced by the mortgagee with interest thereon at Re, 1 per cent, per mensem. The period for redemption was fixed at two years. The mortgagee brought suit No. 465 of 1877 against the mortgagor alleging that the period for redemption had long since expired and the moneys advanced had remained unpaid. He claimed a sum of Rs. 2,200 for principal and interest under the mortgage as being the amount then due from the mortgagor to the mortgagee. He prayed that the said sum together with interest thereon at one per cent, per mensem from the date of the filing of the suit up to the date of payment, and costs of the suit should be ordered to be paid to him by the sale of the mortgaged property. The mortgagor filed a written statement by which he admitted the mortgagee's claim and agreed that a decree might be passed with costs in favour of the mortgagee in accordance with the prayer of the plaint. On October 15,1877, the Court passed the following order: ' Plaintiff Ibrahim do recover Rs. 2,200 the amount of claim and costs Rs. 153-8-0 from the mortgaged pro-party.' The mortgagee decree-holder thereafter filed Regular Darkhast No. 888 of 1878 for execution of the decree and an attachment was ordered to issue against the mortgaged property. A claimant then preferred a claim to the property and prayed that the attachment be raised. The claimant's claim was allowed, the attachment which had been levied was raised and the execution proceedings were marked as ' disposed of' This was on February 22, 1879.
5. The above statement of facts appears to support the defendants' contention that although the mortgage deed recited that possession had been given by the mortgagor to the mortgagee, in reality no possession could have been given. The suit brought by the mortgagee for double the amount of the principal originally advanced by him seems to indicate that he had acted on the principle of Damdupat which would be applicable to the mortgagor who was a Hindu. Had the mortgagee been in possession he would have had to render an account of the income of the property. It is also pointed out to us that the mortgaged property consisted of a residential building used by the mortgagor as such and that it is unlikely that a Hindu using a property for his residence would willingly hand over possession of it to the mortgagee who was a Mahomedan. On obtaining the decree the mortgagee took out execution proceedings against the property and attachment was ordered to issue against the property. It is not likely that the property would be attached if the mortgagee himself was in possession at the time. The further circumstance that a claimant came forward at the time of the attachment, successfully claimed the property and had the attachment removed also seems to indicate that the mortgagee was not then in possession.
6. The decree in suit No. 465 of 1877 was before the enactment of the Transfer of Property Act (IV of 1882). Prior to the Transfer of Property Act coming into force, suits on mortgages were governed by Regulation V of 1827, Section 15, Clause (3). Under this Regulation no standard form was provided for a mortgage decree -either a mortgage decree nisi for sale, or a mortgage decree nisi for foreclosure. The inclusion of a default clause was not compulsory in such decrees and the decrees were capable of execution as ordinary decrees. It was usual, however, to order that the mortgage amount for which the decree was passed should be paid out of the sale proceeds of the mortgaged property. If before the sale the mortgagor paid the decretal amount it would follow that the decree would be satisfied and there would be no need to sell the property which would be reconveyed by the mortgagee to the mortgagor. But if the amount was not paid and the mortgagee insisted on executing the decree in his favour he could bring the property to sale in execution of the decree and get satisfaction of the decretal amount out of the sale proceeds. If any balance was left over that would be handed over to the mortgagor. The decree in suit No. 465 of 1877 which we have to construe is governed by Regulation V of 1827. It is contended by Mr. Coyajee on behalf of the appellants that the decree must be construed as giving a right of redemption to the mortgagor and that if the mortgagor did not redeem the property in accordance with the terms of the decree, any future suit brought by him or by his successor in interest would be barred by res judicata. Mr. Coyajee further contends that the mortgagor had an interest in the execution of the decree inasmuch as he would be entitled to any surplus there might be from the sale proceeds after the decretal amount was satisfied and could therefore have applied to the Court to have the decree for sale executed. It is further contended on behalf of the appellants that the mortgagee did all in his power to carry out the terms of the decree by attempting to bring the property to sale but he was unsuccessful because the mortgagor had no title to the property he had purported to mortgage, the title being in somebody else at whose instance the attachment was raised by the Court. Mr. Coyajee has not been able to refer us to any direct authority in support of his contention that the decree for sale in suit No. 465 of 1877 in favour of the mortgagee amounts also to a redemption decree in favour of the mortgagor. He relies on the language of Regulation V of 1827, Section 15, Clause (3), which is as follows:-
In the absence of any special agreement, or recognised law or usage to the contrary, either party may at any time, by the institution of a civil suit, cause the property to be applied to the liquidation of the debt, the surplus, if any, being restored to the owner.
7. I am unable to agree with the contention that this clause should be construed as enabling the mortgagor against whom the decree is passed to execute the decree as a redemption decree. Numerous authorities of this Court and other High Courts have been cited by Mr. Coyajee in support of the contention that the present suit is barred by res judicata. Reliance has been placed on the decision in Gan Savant Bal Savant v. Narayan Dhond Savant ILR (1883) 7 Bom. 467 where this Court has held that a decree for redemption, on the default of the decree-holder to pay the money declared to be due within the time fixed by the decree, or if none be fixed, within the time allowed by the law for the execution of the decree, operates as a judgment of foreclosure, and debars the mortgagor from afterwards bringing a second suit to redeem the same property. The mortgage in that suit was prior to the passing of the Transfer of Property Act. In that case, however, the facts stated show that the first suit in which the decree was obtained was brought by the manager of the joint family in 1856 and was for the redemption of the same mortgage property, but the decree for redemption though obtained had not been executed. Subsequently the second suit was brought in respect of the same property for redemption. In the first suit, no time had been fixed in the decree for redemption, but it was held that by reason of the default in payment of the money declared to be due within the time prescribed by law for the execution of decrees, the order for redemption must be taken to have operated as a judgment of foreclosure. This case does not seem to me to have an application to the case before us where the first suit was not brought by the mortgagor for redemption but was a suit by the* mortgagee for satisfaction of the mortgage amount by the sale of the mortgaged property.
8. The second case relied on is Hari Ravji Chiplunlcar v. Shapurji Hormasji Shet ILR (1886) 10 Bom. 461.. That case also related to a mortgage executed prior to the Transfer of Property Act. A decree had been passed in 1825 in favour of the mortgagor to the effect that an account having been taken of what was due on the mortgage, the mortgagor might at any time make a tender of such mortgage money with interest up to date, and require that the land be restored. The mortgagor's successor in interest a long time after the claim to execute the decree of 1825 had become time-barred, had brought the second suit for redemption of the same mortgage. It was held that the right of the plaintiff was a right to execute the decree of 1825 subject to the law of limitation and not a right to obtain a decree for redemption and possession. Here again both suits were for redemption and the relief the mortgagor's successor in interest was seeking in the second suit was one which had already been decided and decreed in favour of his predecessor in interest in the previous suit. The case, in my opinion, has no application to the present case
9. The nest case relied on is Maloji v. Sagaji ILR (1888) 13 Bom. 567, which again was on a mortgage before the Transfer of Property Act. It was held there that a decree for redemption which did not provide for payment of the mortgage debt within a fixed time, or for foreclosure in case of default, operated of itself as a for closure decree, if not executed within three years, and that after such a decree was passed it was not open to the mortgagee to file a suit to recover the mortgage money by sale of the mortgaged property. In that case the right to have the decree executed had not become time-barred when the mortgagee brought the later suit claiming that the amount due on the mortgage be ordered to be paid by the sale of the property. The mortgagors had complied with the terms of the decree in the first suit by bringing the ' amount into Court within time. It is stated in the judgment f that the mortgagee in the first suit though a defendant could have insisted on getting a provision inserted in the decree providing for the sale of the property in case the mortgage amount was not satisfied within some fixed time and that not having done so, his claim to a relief for satisfaction of the decree by sale of the mortgaged property had become barred. Later decisions of this and other High Courts do not seem to favour the expression of opinion on this point contained in Maloji v. Sagaji.
10. In Narayan Govind v. Anandram Kojiram ILR (1891) 16 Bom. 480 this Court held that where a redemption decree contained no clause as to the time for payment of the mortgage debt, or for foreclosure in default of payment, the mortgagor could, after the expiration of three years from the date of the decree, execute it by paying the mortgage money provided the darkhast complied with the conditions of the statute of limitation. Dicta to the contrary contained in Ganpat Sawant Bal v. Narayan Dhond Sawant and Maloji v. Sagaji were regarded as not being necessary for the decision of either case and were not approved of. Similarly in Dasharatha v. Nyahalchand ILR (1891) 16 Bom. 134, which related to a mortgage prior to the Transfer of Property Act, the Court held that the mortgagee who had obtained a decree in 1876 for sale of the property, but had not executed the decree, could not resist the mortgagor's subsequent suit against him for redemption on the ground that it was barred by res judicata between the parties. Sargent C. J. in the course of his judgment at page 136 observes :-.the original relationship of mortgagor and mortgagee between the plaintiffs and himself, which remained still in existence after the decree of 11th December, 1876, subject only to the mortgagee's right under the decree to sell within three years from the date thereof.
The defendant [the mortgagee] not having exercised his power of sale, the plaintiffs [the mortgagors] are now entitled to redeem;...
11. The next case relied on is Maruti v. Krishna ILR (1899) 23 Bom. 593, 1 Bom. L.R. 31. The decree in this case was held to be operative from its date and to be enforceable only within three years from that time, unless kept alive by application for execution made according to law within the prescribed periods. There was no question of res judicata before the Court. The decision in this case has been dissented from in Hanmant Anant v. Shidu Shambhu ILR (1923) 47 Bom. 692, 25 Bom. L.R. 358.
12. The next case referred to is Rama v. Bhagchand ILR (1914) 39 Bom. 41, 16 Bom. L.R. 687 , where it was held that when after a mortgage decree for sale, the mortgagee does not apply for decree absolute, he does not get rid of the relationship of mortgagor and mortgagee and there is nothing to prevent the mortgagor or his representative from filing a suit for redemption. This case was governed by the provisions of the Transfer of Property Act 1882 and the Civil Procedure Code 1908. In Ramji v. Pandharinath ILR (1918) 43 Bom. 334, 21 Bom. L.R. 56 , a Full Bench of this Court has held that where a mortgage decree nisi is not made absolute either at the instance of the mortgagor or the mortgagee the mortgagor can bring a second suit for redemption. In Dinu bin Yesu v. Shripad ILR (1919) 43 Bom. 703, 21 Bom. L.R. 720, a Divisional Bench of this High Court has held that a second suit for redemption would be barred where the plaintiff had already previously obtained a redemption decree at a date when the provisions of the Transfer of Property Act 1882 were not operative and the execution of that decree had become time-barred. Here again both suits were for redemption and the decision can be distinguished from the present case on that ground,
13. In Kushaba v. Budhaji : (1921)23BOMLR1176 , where a mortgagor had sued to redeem a mortgage and had obtained a redemption decree which provided that if the mortgagor failed to pay the mortgage money within the time provided by the decree he should be finally debarred from all rights to redeem and the mortgage was not redeemed, it was held that a second suit for redemption could not; lie. Here again both the suits were for redemption of the mortgage property.
14. In Hanmant Anant v. Shidu Shambhu ILR (1923) 47 Bom. 692, 25 Bom. L.R. 358, the mortgagor had obtained a redemption decree in 1886 which entitled him to obtain possession of the mortgaged property on paying the mortgage amount. In 1919 the mortgagor paid the amount into Court and prayed that his application be treated as a suit under Section 47 of the Civil Procedure Code. The Court held that the decree of 1886 did not put an end to the mortgage, and the relationship of mortgagor and mortgagee continued to exist between the parties. Maruti v. Krishna ILR (1899) 23 Bom. 592, 1 Bom. L.R. 31 was dissented from.
15. In Shridhar Sadba v. Ganu Mahadu ILR (1927) 52 Bom. 111, 30 Bom. L.R. 84 this Court has held that the dismissal of a suit for redemption of a mortgage for default is not an order extinguishing the right of redemption under Section 60 of the Transfer of Property Act and does not bar a second suit for redemption of the mortgage. The principle to be deduced from the above cases seems to be that if a mortgagor has once filed a suit for redemption and has obtained a decree for redemption which is final in its nature, it would not be competent to him or his successor in interest to bring a second redemption suit in respect of the same mortgaged property, although the mortgaged property has not been redeemed in accordance with the decree in the first suit. Similarly if in a prior suit by the mortgagee for sale of the property the decree contains a provision for the mortgagor redeeming the property and the decree is in the nature of a final decree it would not be competent to the mortgagor to bring a fresh suit for redemption in respect of the same property when he has not redeemed the property under the decree in the first suit. But in cases where the mortgagee has not effectively brought the mortgaged property to sale under his decree for sale and has not obtained an order enabling him to foreclose the mortgage and has continued in possession of the property, a fresh suit for redemption would be competent to the mortgagor or his successor in interest.
16. Coming to the decisions of other High Courts, there is a Full Bench ruling of the Madras High Court in Vedapuratti v. Vallabha Valiya Raja ILR (1901) Mad. 300 to the effect that where a suit for redemption has been instituted and a decree for redemption passed therein, but not executed, a subsequent suit is not maintainable for the redemption of the same mortgage. That ruling is followed in Ranga Ayyangar v. Narayana Chariar ILR (1913) Mad. 896. In that case the mortgagee had sued for sale on a mortgage bond of 1864 and obtained a decree in 1872 which contained a provision in favour of the mortgagor who was a defendant therein, for redemption and recovery of possession of the mortgaged lands in execution of the decree, but the decree was not executed by either party. It was held that a fresh suit instituted by the mortgagor for redemption of the mortgage was barred by the rule of res judicata That case related to a mortgage prior to the Transfer of Property Act and the facts are somewhat similar to the case before us. But the case can be distinguished from the present case on the ground that the decree in the suit expressly provided for the right of the mortgagor to redeem the property and gave a right to the mortgagor to obtain possession of the plaint lands through the Court in execution on condition of his satisfying the decree passed in the mortgagee's favour. It is clear from the form of the decree in that suit that the mortgagor could have executed the decree and redeemed the property. The case seems to have decided only that if a mortgagor allows the right given to him by a decree in a previous suit to redeem the property by execution of the decree to become time-barred he cannot be allowed to bring a fresh suit for redemption of the same property.
17. On the authorities cited before us the appellants have not been able to show that the matter directly and substantially in issue in this suit has been directly and substantially in issue in the previous suit No. 465 of 1877. All the cases relied on by the appellants, in which it has been held that a second suit would not lie, seem to turn, as observed by the District Judge, on a definite default clause being found in the earlier decrees. The finding of the District Court that the suit is not barred by res judicata on the authorities appears to be correct.
18. The District Judge in reversing the decree of the trial Court ordered the defendants to pay the plaintiff's costs both in the trial Court and in the appeal Court. On the materials now before us it is not clear that the suit brought by the plaintiff against the defendants may not be found to be in the nature of a speculative suit the property purported to be mortgaged having never come into the possession of the original mortgagee or the defendants. Section 60 of the Transfer of Property Act provides that where the mortgagee has not been put into possession the mortgagor would be entitled on payment of the mortgage money to require the mortgagee to deliver the mortgage deed if any to him and to reconvey the mortgaged property to the mortgagor at the mortgagor's cost. The purpose for which the plaintiff has brought this suit is obviously more substantial than this relief. If it is established at the hearing that the mortgagee and his successors in interest have never been in possession of the mortgaged property, through no fault of theirs, it should be open to the trial Court to determine whether the defendants should be required to pay the costs of this preliminary issue in the Courts in which they have litigated the same. In our opinion the costs of this Letters Patent Appeal, the costs in the lower appellate Court and the costs of the trial of this issue in the trial Court should all be made costs in the cause to be dealt with by the trial Court on the further hearing and final disposal of the suit.
19. We accordingly amend the decree of the District Court by striking out the last sentence and inserting therefor 'the costs of this Letters Patent Appeal, the costs in the lower appellate Court and the costs of the trial of this preliminary issue in the trial Court are made costs in the cause.'
20. The suit property was mortgaged on December 21, 1865, by Narain Vishvanath, the grandfather of plaintiff, to Ibrahim Budruddin, the grandfather of defendants Nos. 1 to 3 and father of defendant No. 4, for Rs. 1,100. In 1877 the mortgagee brought a suit to recover the mortgage debt and interest, Rs. 2,200 in all, by sale of the property. On October 15, 1877, a decree was passed in the following terms : 'plaintiff do recover Rs, 2,200 and costs from (literally 'on') the mortgaged property.' In 1878 the decree-holder applied to execute the decree and an order for attachment was made. A claim was preferred, however, by a third party, and the attachment was raised and the darkhast struck off in 1879. No further action appears to have been taken either by the mortgagor or the mortgagee, until the present plaintiff brought a suit for redemption on January 4, 1926. The trial Court dismissed the suit on a preliminary issue holding it to be barred by res judicata by reason of the decree in the suit of 1877. On appeal to the District Judge two issues were raised, firstly, the question of res judicata, and, secondly, the question of limitation. As to limitation the finding was in favour of the plaintiff and that finding is not now challenged. As to res judicata the District Judge differed from the trial Court and held that the plaintiff's suit is not barred. Whether the mortgagor's suit to redeem is barred by the decree in the mortgagee's suit of 1877 is the issue before us in second appeal.
21. Mr. Coyajee for the appellants, the representatives of the mortgagee, relies on the following cases : Gan Savant Bed Savant v. Narayan Dhond Savant ILR (1883) . 7 Bom. 467 ; Hari Ravji Chiplunkar v. Shapurji Hormasji Shet ILR (1886) 10 Bom. 461., Maloji v. Sagaji ILR (1888) 13 Bom. 567 Maruti v. Krishna ILR (1899) 23 Bom. 592, 1 Bom. L.R. 31; Dinu bin Tesu v. Shripad ILR (1919) 43 Bom. 703, 21 Bom. L.R. 720; and Ranga Ayyangar v. Narayana Chariar ILR (1915) Mad. 896. Mr. Pendse for the respondent plaintiff relies on Dasharatha v. Nyahalohand ILR (1891) 16 Bom. 134 and Hanmant Anant v. Shiv Shambhu ILR (1923) 47 Bom. 692, 25 Bom. L.R. 358. The above are all cases which are unaffected by the provisions of the Transfer of Property Act and in that respect similar to the present case. But the following cases dealing with decrees subsequent to the Act have also been referred to: Rama v. Bhagohand ILR (1914) 39 Bom. 41, 16 Bom. L.R. 687 ; Ramji v. Pandharinath ILR (1918) 43 Bom. 334, 21 Bom. L.R. 56 , a Full Bench decision; Kushaba v. Budhaji : (1921)23BOMLR1176 , and two Allahabad cases, Situ Mam. v. Madho Lal ILR (1901) All. 44 and Hari Ram v. Indraj ILR (1922) All. 730 .
22. In Gan Savant v. Narayan there was a decree in a suit for redemption passed in 1856, which made no provision for foreclosure but declared that the mortgagor was entitled to obtain possession on payment of a certain sum. In 1878 a second suit was brought for redemption. It was held to be barred by res judicata. West J. remarked (p. 470):-
The object of the Legislature has been to prevent continued litigation on the same grounds, and this would obviously be defeated by allowing a decree-holder to abstain from putting his decree in force, and proceed again on the same cause as before.
The use of the word decree-holder is to be noted, and it seems to me there is a fairly obvious distinction between the case of a mortgagor who has once got a decree for redemption, has failed to execute it, and subsequently sues to redeem again, and the case of a redemption suit brought for the first time, which is sought to be defeated by a decree obtained by the mortgagee for sale but never executed. In that connection I may refer to Rama v. Bhagchand. There a decree in a suit for sale was passed in 1905. The decree allowed the mortgagors six months to pay, and in default the mortgagee plaintiff was to recover the amount by sale by applying for a decree absolute. In 1911 a suit was brought for redemption. It was held not to be barred, on the ground that; the mortgagor was not in the position of a decree-holder who had a decree to execute; if he did not pay within the six months, and the mortgagee did not apply for a decree absolute, the latter did. not get rid of the relationship of mortgagor and mortgagee. All that the decree fixed in that case was the amount of the mortgage debt. No doubt the transactions in question there were subsequent to the Transfer of Property Act, but the reasoning does not appear to depend on the provisions of the Act ; and in a case like the one before us, although no further decree would have had to be passed, the mortgagee would obviously have had to get an order for sale in execution, and it seems reasonable to hold, that unless he did so the relationship of mortgagor and mortgagee would continue.
23. Hari Ravji v. Shapurji has been strongly relied upon by Mr. Coyajee, both because it is a decision of the Privy Council and because it is a case where a redemption suit was held to be ' barred by reason of a decree obtained in a mortgagee's suit on Br the- mortgage. But the facts were peculiar. The mortgage was in 1806, and in 1825 a decree was passed in a suit on the mortgage, the effect of which was that, an account having been taken of what was due on the mortgage, the mortgagors might at any time make a tender of the amount, with interest, and require that the land should be restored to them. In 1877 a representative of the original mortgagor sued for redemption, treating the decree as a fresh mortgage. It was held that such a suit was barred, the proper remedy being to execute the decree. But the question whether he was entitled to redeem the original mortgage of 1806 was not decided, because no such claim had been made in the plaint and the Court would not allow a new case to be set up. Under the circumstances it can hardly be said that this ruling affords the appellants any assistance.
24. Maloji v. Sagaji, Maruti v. Krishna and Dinu v. Shripad were all cases where there had been a previous suit for redemption, and what has been said therefore with reference to Gan Savant v. Narayan applies to them also. They may be said at most to support the proposition that under the law as it stood prior to the Transfer of Property Act a mortgagor who had obtained a decree for redemption, which he might have executed but had failed to execute, could not bring a fresh suit for redemption. But they do not, either directly or by necessary implication, support the view that a decree for sale, or for recovery of the mortgaged debt out of the property, which has remained unexecuted, bars a suit by the mortgagor for redemption. Moreover, even the former proposition must be said to be doubtful now in view of the decision in Hanmant v. Shidu. It is to be observed that in Dinu v. Shripad the decree expressly provided that if the decretal amount were not paid by a certain date the right to redeem would be for ever barred. There was a similar provision in Kushaba v. Budhaji, one of the cases governed by the Transfer of Property Act; and in the latter case, as in the Full Bench case of Ramji v. Pandharinath, Shah J. emphasised the point that a great deal must depend upon the terms of the decree, the effect of which is to be considered.
25. The Madras case of Ranga Ayyangar v. Narayana Chariar is no doubt in favour of the appellants. In that case a decree for sale was made in 1872, with a provision in favour of the mortgagor for redemption in execution. A subsequent suit for redemption was held barred by res judicata. The case differs from the one , now before us in this respect, that the decree obtained by the mortgagee was expressly made executable by the mortgagor also. But apart from that the decision is inconsistent with the case of Rama v. Bhagchand, to which I have already referred. The Madras High Court disapproved of that case, but it is binding on us.
26. In the Full Bench case of Ramji v. Pandharinath the facts were that in a suit by an assignee of the mortgagor a decree was passed in 1908 which allowed redemption within twelve months and provided that in default the defendant was to recover by sale. No steps were taken to make the decree absolute. It was held that a subsequent suit for redemption was not barred. But the decision was based upon the provisions of the Transfer of Property Act, which are not applicable to the present case. It may be observed that Macleod C. J. was a party to the decision in Ramji v. Pandharinath, and also to that in Kushaba v. Budhaji; and from his remarks and those of Shah J. in the latter case it would appear that the form of the decree was really the decisive factor. Where the decree provided that if the mortgagors failed to pay they should be finally debarred from all rights to redeem (as in Kushaba v. Budhaji) a second suit for redemption was barred. Where (as in Ramji v. Pandharinath) the terms of the decree were that in case of default the mortgagee was to recover by sale, and he had not taken steps accordingly, a second suit to redeem was not barred.
27. Turning now to the cases relied on by Mr. Pendse. In Dasharatha v. Nyahalchand, the facts were these. A mortgage was executed in 1870. In 1876 the mortgagee obtained a decree for sale, which he did not execute. In 1877 he paid up arrears of assessment due to Government and got possession. Afterwards the mortgagor brought a suit to redeem, and it was held not to be barred, on the ground that the relationship of mortgagor and mortgagee was unaffected by the decree for sale, and that the only matter that was res judicata was the amount due under the mortgage. In Hanmant v. Shidu , a redemption decree was passed in 1886, which did not fix any definite time for payment or direct foreclosure in case of default. It was held that this decree did not put an end to the relationship of mortgagor and mortgagee, and that a fresh suit to redeem brought in 1919 was not barred. This being a case of second suit to redeem (not a suit to redeem brought after a decree for sale) it would not have seriously affected Mr. Pendse's argument if the decision had been the other way. It would simply have been a repetition of Maruti v. Krishna. But Maruti v. Krishna was disapproved, and this recent decision of our High Court, dealing with a case not governed by the Transfer of Property Act, has been quite properly regarded by the District Judge as a strong authority in support of the plaintiff's right to redeem in the present case. It cannot be disregarded, although it is quite true, as Mr, Coyajee has pointed out, that it professed to follow the Full Bench case of Ramji v. Pandharinath, which was governed by the Transfer of Property Act.
28. It appears to me, therefore, that the District Judge has correctly decided the preliminary issue as to the admissibility of the suit, and the appeal fails.
29. In the ordinary way, of course, costs should follow the result. But this is a peculiar case. The facts have not yet been gone into; but the pleadings and the documents already on the record appear to indicate prima facie that the mortgagees have never been in possession of the property since the time of the abortive decree of 1877. Moreover, the fact that the suit of 1877 was brought to recover double the principal amount of the mortgage (damdupat) would seem to suggest on the face of it that possession had never been obtained at all. Possibly when evidence has been recorded the case may assume a different aspect, but at present it has every appearance of being a purely speculative suit; and in view of the terms of Section 60 of the Transfer of Property Act it is not understood how the plaintiff can put forward a claim, as he has done, to recover the value of the property from the defendants. I, therefore, agree with my learned brother that the costs in this Court and in the Court of first appeal and also the costs of this issue in the trial Court should be costs in the cause. If the plaintiff ultimately succeeds the Court disposing of the case can make such order as to costs as may be reasonable. If, on the other hand, the suit fails there would seem to be no reason at all why the defendants should be put to any expense over the litigation.