1. This suit was brought by Kadams the present plaintiffs to redeem a mortgage, dated June 2, 1829, which comprised four pies takshim belonging to the present plaintiffs, It is conceded that the mortgage security was split up. By Exhibit 47, the purshis signed by the pleaders on behalf of the defendants, it is admitted that the plaintiffs' share comprises only four pies and that if accounts are taken under the Dekkhan Agriculturists' Relief Act, the profits in respect of the four pies share will be found Sufficient to wipe off the whole mortgage debt. The only question, therefore, that arises for decision is whether the present suit is maintainable notwithstanding the previous decision in Suits Nos. 1217 of 1866 and 351 of 1911. Both the lower Courts held that the present suit was not barred by virtue of the decision in Suit No. 351 of 1921. The learned Subordinate Judge held that the suit was not barred by the decision in Suit No. 1217 of 1866, but the lower appellate Court held that it was be barred.
2. Suit No. 351 of 1911 was filed by defendant No. 1 for partition of his share of 1 anna and 9 pies, The present plaintiffs, being owners of four pies share and interested in the equity of redemption, wore joined in the suit as defendants Nos. 83 to 85. The Court assumed that the family of defendant No. 1, that is, Gondhalekars, had become owners as more than sixty years had elapsed from the date of mortgage, It appears that the Courts then failed to notice one important point, namely, that the period for redemption of the mortgage of 1829 was twenty-five years, and, therefore, the redemption would be duo id the year 1854 and the suit for redemption 'would not be barred till 1914, It was, however, held in 1911 that the right of redemption was barred by reason of the fact that the parties to the suit lost sight of the fact mentioned above that the mortgage had provided for a period of twenty-five years for redemption. Further, the Gondhalekars as mortgagees would in any event be entitled to remain in possession and the question as to the extinction of the mortgage was not gone into in that suit. Therefore, on both these grounds, namely, that the parties were under an erroneous belief that the mortgage deed of 1829 did not provide for a period of redemption, and secondly, that the mortgagees in any event were entitled to remain in possession, the question as to the extinction of the mortgage cannot be considered to have been heard and finally decided in that suit. It was held by both the Courts that the present suit is not barred by the decision in Suit No. 351 of 1911, and it is not argued before me on behalf of the respondents that the present suit is barred by the decision in Suit No. 351 of 1911, I would, therefore, agree with the view of the lower Courts that the present suit is not barred by the principle of res judicata by virtue of the decision in Suit No. 851 of 1911.
3. With regard to Suit No. 1217 of 1866, it appears that it was brought by three plaintiffs of whom Pandbarao Kadam was the assignee from the present plaintiffs with regard to the four pies share in the property. The defendants in that suit contended that two annas takshim was already redeemed in the year 1842 and Pandbarao was joined as he had purchased eight pies share in 1866 from the present plaintiffs and others belonging to the Kadam family. Plaintiffs Nos. 1 and 3 in that suit were ordered to be present in Court under Section 127 of Act VIII of 1859. They made default in appearance. The suit was, therefore, dismissed so far as their share was concerned, and redemption was allowed with regard to the sixteen pies takshim, and a decree was passed in favour of plaintiff No. 2 Rainajirao. During the course of the judgment, which is in Marathi, the learned Subordinate Judge stated 'that the plaintiffs did not appear and show proper cause and therefore, they have got the adverse decision against themselves. Therefore, the right of redemption so far as they are concerned is extinguished. Only Ramajirao's right has remained and he has, therefore, the right of redemption.' In the final decree, however, the right of redemption of the plaintiff Ramaji-rao was decreed, and nothing was said with regard to the extinction of the right of plaintiffs Nos. 1 and 3 with regard to their eight pies share.
4. The learned Subordinate Judge held that the present suit was not barred by res judicata on the ground that in the previous suit it was unnecessary to decide whether the vendors of Pandbarao bad a right to redeem any part of the mortgage right, and that as a matter of fact, there was no decision on that point as the suit was dismissed for default of plaintiffs Nos. 1 and 3. The lower appellate Court, however, came to an opposite conclusion and, relying on the case of Punamchand v. Mollison : (1911)13BOMLR658 and Section 127 of Act VIII of 1859, held that the present suit was barred by the decision in Suit No 1217 of 1863.
5. It is urged on behalf of the appellants that there was no issue raised in the previous suit and no adverse finding on the question as to whether the plaintiffs' right of redemption subsisted at the date of the previous suit. In fact, Section 127 of Act VIII of 1859 appears in the old Civil Procedure Code before the settlement of issues, and the dismissal of the suit was for default of appearance under Section 127 at a stage prior to the framing of the issues, and, therefore it cannot be said that the issue as to whether the plaintiffs' right to redeem was extinguished, was heard and finally decided in the previous litigation. Section 127 of the Civil Procedure Code of 1859 corresponds to Order X, Rule 4, of the present Code. There is no provision in Section 127 similar to the provision in Order IX, Rule 9, or Order XXII, Rule 9, or Order XXIII, Rule 1, ol. (3), precluding a fresh suit after an order is passed for dismissal of the suit. Under Section 60 of the Transfer of Property Act, the right of the plaintiff to redeem could not be barred unless there was an extinguishment of the relation of mortgagor and mortgagee by act of the parties or by order of a Court. There is no act of party which has resulted in the extinguishment of the relation of mortgagor and mortgagee It is not suggested that there is any release passed with regard to the equity of redemption. The question is whether there is an order of the Court extinguishing the relation of mortgagor and mortgagee between the parties.
6. It was held in Rama Tulsa v. Bhagchand : AIR1914Bom200 relying on the; case of Hansard v. Hardy (1982) Ves 455 that a dismissal for want of prosecution of a mortgagor's action for redemption does not prevent him from bringing a fresh suit for redemption. In liarn-ohandra v. Shripatrao (1915) 18 Bom. L.R. 33 a second suit for redemption by the son was held maintainable notwithstanding the order for abatement of the suit for redemption brought by the father. In Shridhar v. Ganu (1927) 30 Bom. L.R. 34 it was 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. Under Order IX, Rule 9, where a suit is wholly or partly dismissed under Rule 8, the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action. Notwithstanding such a provision in Order IX, Rule 9, it was held that the general terms of that rule did not override the specific directions given in Section 60 of the Transfer of Property Act.
7. Reliance has been placed on behalf of the respondents on the decision in the case of Thakur Shankar Baksh v. Dya Shankar, That case has been distinguished in Shridhar v. Ganu (p. 37) on the ground that a particular tenure was involved in the decision of the case and that Section 60 of the Transfer of Property Act was not called in aid. It is urged, however, on behalf of the respondents that the Transfer of Property Act was enacted in 1882 and was made applicable to the Bombay Presidency in 1803, and, therefore, under the ruling in Thahur Shankar Bahsh v. Dya Shankar, the present suit should be held barred by res judicata. It is urged on behalf of the appellants that though Section 60 of the Transfer of Property Act was enacted in 1882, the principle of law, namely, that once a mortgage always a mortgage, should beheld applicable and that the equity of redemption should be held not barred unless there was an extinguishment of the relation of mortgagor and mortgagee by act of the parties, or by order of the Court.
8. In the year 1870, when Act VIII of 1859 was in force, it was held by the Privy Council in Nawab Azimut Ali Khan v. Jowahir Sing (1870) 13 M.I.A. 404 as follows (p. 412):-
That decree, in fact, did nothing bat dismiss the then pending suit for redemption, on the ground that the full and entire amount of the mortgage money had not been deposited (the sums tendered being only Rs. 26,400, and Rs. 400). According to the course and practice of the Courts in India, the only point to be determined in such a suit is whether the mortgage debt has been fully satisfied after taking into account the sum tendered or deposited; nor is the finding of any particular amount as still due conclusive against the Mortgagee in a subsequent suit.
9. So also in the year 1874, it was held by the Calcutta High Court in Roy Dinkur Doyal v. Sheo Golam Singh (1874) 22 W.B. 172 as follows (p. 173):-
What then was the cause of action which was heard and determined between the present parties in the former suit, and what is the cause of action which is pub forward by the plaintiffs is this present suit, and which they ask to 'lave now heard find determined.
It seems to us plain that the principal cause of suit is the relation which Maheshwar subsists between the parties as mortgagor and mortgagee, and the consequent right on the part of the mortgagor at all reasonable times to ask for an account from the mortgagee. The suit is brought for the purpose of obtaining an adjustment of accounts or adjudication of the state of the accounts between the parties, and for such relief at the hands of the Court as the plaintiff may be entitled to upon that adjustment or adjudication of the accounts. Now the former suit effected an adjustment of accounts up to the date of April 18, 1868. The substantial cause of action within the meaning of Section 2 Act VIII of 1859, in the present suit, that which the plaintiff desires to have heard find determined, is the state of accounts which has arisen since April 18, 1868-obviously an entirely fresh cause of action. The matter which the Court in asked in this suit to hear and determine, is n matter which has arisen and come into being since the matter of the last suit was heard and determined.... And consequently the Section 2 of Act VIII of 1850 does not bar the Courts from entertaining this suit.
10. Further it is stated at page 174 :-
That decree did not put an end to the relation of mortgagor and mortgagee, The Court did not in that suit pretend to foreclose the plaintiff's right of redeeming in the event of his not paying the money then declared to be due... and it would be very hard upon him therefore that his equity of redemption should nevertheless be indirectly foreclosed by the effect which the Subordinate Judge has given to Section 2 Act VIII of 1859, without any period of grace or any terms whatever being attached to this foreclosure.
11. Those decisions under the Act of 1859 were relied upon in the Full Bench decision in Ramji v. Pandharinath I.L.R (1918) Bom. 334: 21 Bom. L.R. 56. where it was held that the mortgagor could bring a second suit for redemption and the same would not be barred by Section 11 or Section 47 of the Civil Procedure Code, 1908. The case of Puniinchand v. Mollison : (1911)13BOMLR658 relied upon by the lower appellate Court, was not a case relating to a mortgage but to a money bond, and therefore, the considerations applicable to a suit on a mortgage would not apply to that, case. The case of Thakur Shankar Balesh v. Dya Shankar might be distinguished on the ground that the document in that case was a conditional sale which became absolute after a period of three years. If reference is made to the argument of Mr. Mayne on behalf of the respondent, it appears that the cause of action failed the plaintiff because his case was one of conditional sale, on breach of which condition the sale had become absolute; and it was argued that even if Section 6 of Act I of 1869 would have placed him in a better position had he sued thereafter for the first time, still, as he had elected to sue before it, the Act did not undo the state of things which he had created.
12. I think, therefore, that I am bound by the decisions of this Court in Rama Tulsa v. Ehagchand : AIR1914Bom200 ; Ramchandra v. Shripat-rao (1915) 18 Bom. L.R. 33; and Shridhar v. Ganu (1927) 30 Bom. L.R. 34.
13. I am, therefore, of opinion that the present suit is not barred by the principle of res judicata by virtue of the previous decision in the Suit No. 1217 of 1866.
14. I would, therefore, reverse the decree of the lower appellate Court and restore that of the Subordinate Judge.
15. Each party to bear his own costs throughout.