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Maloji Vs. Sagaji and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom567
AppellantMaloji
RespondentSagaji and anr.
Excerpt:
mortgagor and mortgage - redemption suit--decree for redemption with-out proviso for foreclosure or payment within a fixed time--limitation--subsequent suit by mortgagee for sale--res judicata--civil procedure code (jet xiv of 1882), section 13, explanation ii. - - the plaintiff, the mortgagee having failed to obtain a provision for sale in the decree in the former suit, as he might and ought to have done if he wished to preserve the right of sale, that right must be held, under explanation ii of section 13 of the code of civil procedure, to have been a matter directly and substantially in issue in the former suit within the meaning of that section, and to have been in effect negatived by the judgment......and by sale of the mortgaged property. the defendants obtained on 12th november, 1883, a decree for redemption, which was confirmed, on appeal, on the 24th september, 1884; and on the 8th april. 1885, they paid into court the amount due under the decree. the presesent suit was filed on the 26th november, 1884; and the subordinate judge has awarded the claim, on the ground that the decree for redemption contained no provision by which the mortgagee could recover the debt due to him, and that the debt had not been paid at the date when the suit was filed. the redemption decree simply declared the amount of the debt duo under the mortgage, and provided no time within which it should be paid, or the mortgage foreclosed.2. we think that the subordinate judge's decree has been.....
Judgment:

Birdwood, J.

1. The plaintiff sues to recover the amount of his mortgage-debt from the defendants personally, and by sale of the mortgaged property. The defendants obtained on 12th November, 1883, a decree for redemption, which was confirmed, on appeal, on the 24th September, 1884; and on the 8th April. 1885, they paid into Court the amount due under the decree. The presesent suit was filed on the 26th November, 1884; and the Subordinate Judge has awarded the claim, on the ground that the decree for redemption contained no provision by which the mortgagee could recover the debt due to him, and that the debt had not been paid at the date when the suit was filed. The redemption decree simply declared the amount of the debt duo under the mortgage, and provided no time within which it should be paid, or the mortgage foreclosed.

2. We think that the Subordinate Judge's decree has been rightly reversed by the Assistant Judge. In the former suit, it was open to the present plaintiff, the mortgagee, to ask the Court that a provision should be inserted in the decree for the payment of the debt within a fixed time, and for foreclosure, or sale, if the payment were not made in such time. He neglected to do this, and the decree, in which the mortgage was thenoeforward merged, must be held as now alone regulating the relations of the parties. See Tatya Vithoji v. Bapu Balaji I.L.R. 7 Bom. 330 ; Navlu v. Raghu I.L.R. 8 Bom. 303 No time having been fixed for redemption, the defend ants, the mortgagors, who obtained the redemption decree, had-under the Limitation Act, 1877, three years within which they could execute it. If they had not redeemed within that time, they would for ever have been foreclosed, as was held in Gem Savant Bal Savant v. Narayan Dhond Savant I.L.R. 7 Bom. 467. Under the ruling in that case, (which, however, has been dissented from by the Madras High Court - Karuthasami v. Jaganatha I.L.R. 8 Mad. 478 the decree made in the defendants' suit was practically a foreclosure decree, if not executed in three years, and, therefore, effectually determined the rights under the mortgage, both of the mortgagee and the mortgagors: see also Lddu Chimaji v. Babuji Khanduji I.L.R. 7 Bom. 532 . The defendants, having paid the money within the prescribed period of limitation into Court, are now entitled to recover the property. The plaintiff, the mortgagee having failed to obtain a provision for sale in the decree in the former suit, as he might and ought to have done if he wished to preserve the right of sale, that right must be held, under Explanation II of Section 13 of the Code of Civil Procedure, to have been a matter directly and substantially in issue in the former suit within the meaning of that Section, and to have been in effect negatived by the judgment. A matter of defence omited to be pleaded cannot afterwards be set up in answer to the judgment Ellis v. M'Henry L.R. 6 C.P. 238 see also Srimut Rajah Moottoo Vijaya v. Katama Natchiar 1 M Ind. Ap. 73. And a judgment implies the judicial determination of a point contested either directly or by implication. See per Lord Romilly in Jenkins v. Robertson L.R., 1 H.L.C. 117 ; Langmead v. Maple 18 C.B. (N.S.) 255 ; Balak Tewari v. Kausil Misr I.L.R. All. 491. And where a question has been necessarily decided in effect, though not in express terms, between parties to a suit they cannot raise the same question in another suit in any other form Soorjomonee Dayee v. Suddanand 12 B. L.R. 304; Man Gobind Doss v. Jankee Ram Mohunt Calc.(1864) W.R. Sup. 212; Ram Kirpal v. Rup Kuari I.L.R. All. 269 .

3. The question as to the plaintiff's right of Sale is, therefore, res judicata; and we must confirm the decree of the Assistant Judge, with costs.


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