Amberson Marten, Kt., C.J.
1. The question in this appeal is whether the plaintiff's suit for redemption No. 18 of 1023 was rightly dismissed on the ground found by the lower appellate Court, viz., that it was barred under Order XXIII, Rule 1, in as much as the previous suit of 1910 had been withdrawn without permission to institute a fresh suit in respect of the same subject-matter. That other suit was 605 of 1910, It was brought by a brother of the present plaintiff and also by the present plaintiff who was then & minor by his mother and guardian Mallava against the mortgagees for redemption of the suit mortgage which was created so long ago as 1869. In that suit of 1910, the then plaintiffs sued as donees under a gift made by one Savakka, the widow of the original mortgagor. They, accordingly, claimed accounts under the Dekkhan Agriculturists' Relief Act and possession of the land.
2. On January 24, 1911, that other suit was disposed of in the manner following. The plaintiff's pleader put in a purshis to the following effect: 'In the said matter a compromise has been arrived at, and it is prayed that the suit should be dismissed.' Accordingly, the Court's order was in the following terms: 'Compromised. Dismissed with costs.' It does not appear that any notice was given to the defendants of this order. And what is of more importance is that the order on the face of it wholly ignored the provisions of Order XXXII, Rule 7, which requires that, for a compromise of a suit on behalf of an infant, the leave of the Court must be obtained and expressly recorded in the proceedings. Otherwise the agreement is voidable against all parties other than the minor.
3. The minor took no steps to get this decree set aside. In 1918 another suit for redemption was brought by Ningangouda who is the present defendant No. 3. But the suit was dismissed on the preliminary ground that it was barred by the suit of 3910, It appears that another defendant (the present defendant No, 4) brought another suit for the same purpose, but the details of that we have not been referred to except that the trial Judge said that that suit was also withdrawn. The present plaintiff has long since attained majority, and it is conceded that the ordinary term of bringing an action to set aside a decree has long since passed in his case.
4. Those shortly stated are the facts we have to deal with on the first main point in the case. Apart from the points argued in the Courts below, counsel for the appellant hag taken a new point which he frankly concedes was not taken in the Courts below, nor indeed was present to his mind till he had an opportunity of seeing the plaint in the old suit. It is thus that the old suit was brought, so far as the plaintiffs are concerned, as donees under this deed of gift, whereas the present suit is brought by the plaintiff in his capacity as heir of the mortgagor. Now if it had been that, at the date of the suit in 1910, the plaintiff, in addition to being a donee under the deed of gift, would, in the event of the deed of gift being bad, be entitled to the equity of redemption or to a share as one of the heirs of the mortgagor, then if in that suit he could have made that claim but did not, I take it that that would be fatal to his present case, He oould not raise that claim now, supposing the suit for other reasons was not maintainable. But in fact at the date of the 1910 suit, the present plaintiff was not one of the heirs of the mortgagor. The mortgagor's widow Savakra had a Hindu widow's estate. Consequently the heirs to take on her death could not be ascertained under Hindu law until her death-Therefore, the plaintiff had only during her life what has been described in the cases as a apes suceessioris. But that spes certainly would not allow him to bring; a suit for redemption.
5. It seems to me, therefore, that this earlier suit being brought in an entirely different right is much the same as if it was brought by a different person. Consequently it cannot be binding on the plaintiff as regards his present suit. He has now a totally different right acquired at a date posterior to the disposal of the original suit, I am quite unable to accede to the argument which was presented to us by counsel for the respondents to the effect that if A brings an action having at that date only a particular alleged right under a particular document and that suit is decided against him, yet if he subsequently acquires a title in a totally different way through some different person, the earlier suit is nevertheless a bar to that later right which was not and could not be in dispute in the earlier case. Nor do I accept the proposition that if once you find a genuine mortgagor-for in this case Savakka was a party to the original redemption action as defendant-then if she did not insist on being substituted as a plaintiff and on seeking a redemption decree against the mortgagee, the equity of redemption would be barred against everybody.
6. Accordingly, on this new point that has been taken by Mr. Desai, I think that the present plaintiff is not barred by the suit of 1910, and much less by the suit of 1919 to which he was not even a party. Consequently the appeal on that ground alone ought, in my judgment, to be allowed.
7. But putting that point entirely on one side and taking the case as dealt with by the lower appellate Court-and I may add I think we ought to do that on this ground alone that it affects the question of costs-here, too, I think that the appellant is entitled to succeed. I may start by assuming for the sake of argument in favour of the respondents that however erroneous it was on the part of the Judge to allow any such order to be made-as was in fact made-in the suit of 1910, and although it may be conceded that on the face of it as soon as any proceedings were brought in time to set aside that particular decree on the part of the infant, it would be bound to be set aside as being made in breach of the express provisions of the Code, still in fact no such proceedings have been taken by the infant, The ordinary time for that purpose has long since expired. It is not suggested there was any case of fraud, as in the case of Eahan Chundra Safooi v. Nundamoni Dasee I.L.R. (1881) Cal. 357 which was cited to us.
8. The question then cornea whether an order, thus arrived at without any trial or ordinary hearing of the parties, can be said to extinguish the equity of redemption within the meaning of Section 60 of the Transfer of Property Act, 1882, That section lays down the rights of a mortgagor to redeem subject to this proviso : 'Provided that the right conferred by this section has not been extinguished by act of the parties or by order of a Court.' The question is, has it been extinguished by an order of the Court So far as the express order goes, it undoubtedly has not been so extinguished. The order merely refers to 'Compromised. Dismissed with costs.' What that compromise actually was we do not know, And a mere dismissal does not necessarily involve that the right to redeem is finally barred.
9. In this respect it must be borne in mind that the Code expressly provides in mortgage suits for an order that the defendant in certain events is to be debarred from all right to redeem the property. I refer, for instance, to Order XXXIV, Rule 2 (d) and Rule 3 (2), In the Full Bench case of Ramji v. Pandharinath (1918) 21 Bom. L.R. 56Sir Basil Scott draws attention to some of the provisions under the Civil Procedure Code. That was a case where a mortgagor brought a suit for redemption and obtained a decree nisi. But neither the mortgagor nor the mortgagee tried to make it absolute. It was held that, though the execution of that particular decree had become time-barred, the mortgagor could nevertheless bring a fresh suit for redemption. It was put to a considerable degree on this ground, viz, (p. 68):-
That decree [nisi] 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, of Act VIII of 1859, without any period of grace or any terms whatever being attached to this foreclosure Per Phear J, in Roy Dinkur Doyal v. Shea Golam Singh, (1874) 22 W.R. 172
10. That was a passage from a judgment which Sir Basil Scott cited, and he points out at p. 71 that the main point in dispute in a redemption suit is really the amount to be paid by the mortgagor for redemption, and that consequently the amount at the date of the second suit is or may be a substantially different amount at the date of the first suit. Consequently it does not necessarily follow that the first suit bars the second.
11. Those oases have been further dealt with in Ramchandra v. Hanmanta : (1920)22BOMLR939 , a decision of Sir Norman Maoleod and Mr. Justice Heaton. There the plaintiff sued in 1905 to redeem a mortgage. In the following year he withdrew the suit with permission to bring a fresh suit. That permission was granted on condition that he should bring a fresh suit within two years, and pay the defendants' costs, In fact he did not carry out that condition, and filed a second suit to redeem the mortgage in 1914. It was there held that the second suit was maintainable, for the mere fact that the plaintiff had filed a redemption suit, which he withdrew, did not deprive him of his right to redeem, There Sir Norman said (pp. 940, 941):-
The effect of the order made by the Court in the previous suit was to restrict the period of limitation which is allowed by taw to a mortgagor to redeem. So long as it has not been decided that there was do 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 hiin of hia 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 which has been set up falls to the ground. The result, therefore, of the decision of both Courts In this case would be that although it has never been decided that the plaintiff is not a mortgagor, still he has no right left in him to redeem the property, and that on general principles must be wrong. Therefore, in my opinion, the view taken by the learned District Judge and the order made in Suit No. 220 of 1803 was erroneous, and there was nothing in that order which affected the plaintiff's right to redeem during the period of limitation allowed by the Indian Limitation Act
12. Now, some passages in that judgment, if taken literally, would be amply sufficient to justify the appellant's contentions in the present suit. For I take it that a distinction is not going to be drawn between what the Chief Justice describes as ' abandoning or withdrawing' a suit and the mere word which we have here ' dismissed.' On the contrary, we had a strenuous argument by counsel for the respondents to the effect that the word ' dismissed ' in the Court's order of 1910, ought to be construed as 'withdrawn' and hence Order XXIII,rule 1 applied. But it is only right to point out that Sir John Heaton did not base his judgment on the broad ground stated by the Chief Justice but on this ground that Section 874 of the Oivil Procedure Code of 1882, (which is now Order XXIII, Rule 2), prevented the Court from imposing a condition, as it had done there, of bringing a new suit within two years, because it had no power to alter the period of limitation allowed to a litigant by the Indian Limitation Act itself.
13. A case on the other side of the line was cited to us, Kushaba v. Budhaji (1921) 23 Bom. L.R. 1178 a decision of Sir Norman Macleod and Mr. Justice Shah, In that case there was an express term in the order that if the mortgagors failed to pay the mortgage money within the time limited by the decree, they should finally be debarred from all right to redeem. In fact, they did not pay this money, and, accordingly, it was held that the second suit would not lie. Patting aside all technical considerations as to whether the decree in that suit was a decree nisi or a final decree, still nevertheless there was clearly an order of the Court extinguishing the right to redeem within the wording of Section 60 of the Transfer of Property Act. Therefore, with respect, I can quite understand the decision of the Court which was arrived at in that particular case.
14. There are two further cases on the subject, viz., Ramchandra v. Balbhim (1922) 20 Bom. L.R. 211 and Hanmant v. Shidu (1928) 28 Bom. L.R. 358. But I do not think it necessary to refer to the details in those cases, Stapping there, I think the principle one extracts from these cases is that there must be a clear intention to extinguish the equity of redemption within the meaning of Section 60 of the Transfer of Property Act. Speaking for myself, I do not think that the provisions of the civil Procedure Code can be read in relation to mortgage suits in exactly the same way as if Section 60 had never been passed. We know that in another class of suits, viz. partition suits, there are certain limited classes of cases where parties may bring a second suit for partition, although, for instance, in the first suit & preliminary decree declaring the rights of the parties is made, but no partition, in fact, is effected, notwithstanding the directions for partition contained in the decree. The principle, as I understand it, of these suits is that otherwise it would mean that the parties would have to remain joint in perpetuity. So, here, we have it under the general law and under the express conditions of the Code that the equity of redemption in a mortgage is only to be extinguished in a particular way.
15. It was argued for the respondents that the present case is essentially different from the ones cited because in those there had been a decree for redemption which recognised the right of redemption, whereas here the suit had been dismissed prior even to a trial. But to my mind that argument really tells against the respondents. I find it far more difficult to imagine that the Court ever intended to extinguish any equity of redemption in a case where there has been no hearing, and all that has been done is to pass an ill-considered order on a pursbis handed in by the pleader for merely one of the parties. In this respect, I cannot help noticing that there are two plaintiffs here. The first is an adult and there is nothing whatever on the record to show that the Court's attention was drawn to the fact that the second plaintiff was a minor,
16. Speaking from my experience of the practice on the Original Side of this Court, I, on several occasions, would have been trapped into making wrong orders unless I had specifically enquired of the parties who Were seeking to obtain the ordinary consent orders as to whether any of the parties were or were not minors. One can well understand making this present order, if there was no minor in the ease, or if no minor was brought to the Judge's attention. But 1 cannot understand that Judge making it if this fact was present to his mind. I agree this is guess work; I do not decide the case on that point. But, after giving my best consideration, I do not think for a moment that the Court ever intended to extinguish the equity of redemption in the present case.
17. I am of coarse fully aware that under English law we have different technical rules which, 1 may say, are a well-known trap for inexperienced practitioners, viz,, that ordinarily the dismissal of a suit for redemption simpliciter operates as a foreclosure decree. Accordingly, it is usual for counsel in the Chancery Courts, in cases where it is not intended that that result should happen, to ask the Judge to frame his order in form as ' action Withdrawn ' or something of the sort, which would avoid the consequences of a ' dismissal.'
18. Mr. Desai baa drawn our attention to Hansard v. Hardy (1812) 18 Ves. Jan. 455 which bears my recollection out in this respect, and points out that, even under English law, the rule I have referred to does not apply to eases where redemption suits are dismissed merely for want of non-prosecution.
19. There was one further argument addressed to us about the 1919 suit, and it was said that that case in some way bound the present plaintiff. It is sufficient to say that that suit was decided on the ground that it was barred having regard to the dismissal of the 191.0 suit. Further, the present plaintiff was not even a party to the 1919 suit.
20. For the above reasons, therefore, I cannot agree with the reasoning or conclusion which the learned Judge arrived at in this case. In my opinion, on this preliminary point the appellant should succeed. But, unfortunately, the lower appellate Court did not proceed to decide the other issues raised in the trial Court. Accordingly, we will consider what ought to be done in that respect when my learned brother has given judgment, and we have heard what counsel have to say further on the subject.
1. The short question in this appeal is whether the plaintiff is precluded from instituting the present suit by reason of his former suit in 1910, under Order XXIII, Rule 1, Sub-clause(c), of the Code of Civil Procedure, In my opinion, he is not, and for two reasons. The first reason is that, under the former plaint, he was suing not as heir of the mortgagor, but as a donee from the mortgagor's widow. The subject-matter, therefore, including the right was slightly different then from what appeals to be now. The second reason is that he is not shown to have withdrawn from the suit, or abandoned a part of the claim in the sense that he gave up his right to redeem. But, under Section 60 of the Transfer of Property Act, that right can only be extinguished either by act of the parties or by order of a court, In the present case, it may be said that the compromise of the decree consists of both. In that decree the actual words in the purshis of the pleader and the order of the Court, which have been cited in extenso by my Lord the Chief Justice, are not sufficient to show that the intention of the plaintiffs or of the order of the court was that the equity of redemption should be extinguished. It is unfortunate that the attention of the Court does not appear to have been invited to the fact that the second plaintiff was a minor, and that the Court was bound, under Order XXXII, Rule 7, to have the terms of the compromise before it, to apply its mind to them, and to give or to withhold its sanction, It is at least certain that, if it had been a real withdrawal in the sense that the minor plaintiff gave up his right to redeem, some substantial consideration should have been forthcoming, But it is to be noted that the mortgage itself has never been disputed, nor, on the other hand, has the mortgagee ever alleged that any consideration whatever was paid to the plaintiff to induce him to give up his right of redemption.
2. It appears to mo that, in cases such as this, it must be a question of fact to be decided in each case whether the Court has or has not ordered that the equity should be extinguished. Unless it has so ordered, the equity would remain: Ramji v. Pandharinath I.L.R. (1918) 43 Bom. 224 In the present case, I am not satisfied that, the parties either agreed by the compromise or that the Court made an order that it should be extinguished. Nor is it necessary to consider the various possible hypotheses, such as those which have been, offered to us on either side, or to add to them by further hypotheses, such as, for instance, that there might have been some flow in the dead of gift in that suit in favour of the plaintiffs from Savakka defendant No. 2, which led to the compromise.
3. For these reasons, I agree that the view of the lower Courts is wrong, and the appeal must be allowed.