Amberson Marten, Kt., C.J.
1. The question for our determination in this second appeal is whether the presant redemption suit which was brought in 1921 for the redemption of the mortgage created in 1867 is barred by reason of the fact that a similar redemption suit was brought in 1894 by the same plaintiff and was dismissed for default in 1897. The lower Courts held that under Order IX, Rule 9, or otherwise the plaintiff is prevented from instituting this second suit.
2. In our opinion the question turns on the true meaning and effect of Section 60 of the Transfer of Property Act, which, after setting out what amounts to a right to redeem, proceeds:
Provided that the right conferred by tins section has not been extinguished by act of the parties or by order of, Court. The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.
3. In the view we take, we think this section means that unless the right to redeem is extinguished by act of the parties as e, g. by a conveyance of the equity of redemption to the mortgagee, it must be extinguished by an order of the Court expressly directed to the point of extinguishment, For instance under Order XXXIV, Rule 7, which provides for the ordinary preliminary decree in a redemption suit the rule provides that the decree shall direct that if payment is not made on or before the day to be fixed by the Court, the plaintiff shall (unless the mortgage is simple or usufructuary) be debarred from all right to redeem or (unless the mortgage is by conditional sale) that the mortgaged property be sold. A sale by order of the Court, when carried out, would be another way by which the mortgagor's right to redeem that particular property would be extinguished, for in the hands of the purchaser under the Court sale the land would be free from redemption by the mortgagor.
4. To my mind then, a mere dismissal for default, without going in any way into the merits of the case, or perhaps even appreciating that the suit is one for redemption, cannot fairly be said to be an order extinguishing the right of redemption. Indeed the argument to the contrary is only based on a literal application of Order IX, Rule 9, without any reference to the specific directions of Section 60 of the Transfer of Property Act. But we have to remember that Order IX, Rule 9, which directs that where a suit, is wholly or partially dismissed under Rule 8, the plaintiff shall be precluded from bringing afresh suit in respect of the same cause of action, is framed in general terms. Accordingly I think it would be stretching its operation too far to make it override what one may hold to be specific directions in a particular Act, like those of Section 60 of the Transfer of Property Act.
5. As far as the recent decisions of this Court are concerned, they all tend towards this view. In Rama Tulsa v. Bhajchand : AIR1914Bom200 . Sir Basil Scott at p. 611 appears to have accepted the English rule on the point which is that though in general the dismissal of a suit for redemption operates as a foreclosure, yet that is not the case where the must is dismissed merely for default. Sir Basil Scott an id (p. 691):-
It has been held in England in Hansard v. Hardy (1812) 18 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 redamption. A fortiori we think that his failure to pay the amount of the decretal debt within the six months allowed to him cannot, so long as the relationship of mortgagor and mortgagee subsists, prevent him from filing a fresh suit for redemption, subject however to this that he cannot, go behind the decree in the mortgagee's suit in so far as it settles the amount of the moitgage-debt up to the date of that decree.
6. Then in Ramchandra v. Hanmanta : (1920)22BOMLR939 . Sir Norman Macleod stated (p 940) :-
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 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.
7. It will hi noticed there that the learned Judge referred to abandoning the suit as well as to withdrawing it. For a withdrawal, Order XXIII, Rule 1, Sub-section (3) would apply. Abandonment, 1 take it, refers to a case such as we have here where for default of appearance the suit is dismissed.
8. Then, in Basangouda v. Rudrappa : AIR1927Bom87 , Mr. Justice Madgavkar and I had to consider a case of withdrawal, and we there followed the previous Bombay decisions. But a distinction may be drawn between that case and this. There the mortgagor in the second suit was claiming in a different character which he did not possess at the time of the first suit, viz., as heir-at-law of a particular person who had died after the date of the first suit.
9. Substantially the argument for the respondents is based on the decision of their Lordships of the Privy Council in Thakur Shankar Baksh v. Dya Shankar , which was a case from Oudh. There there had been a redemption suit of 1868 which was dismissed for default, and then in 1883 another redemption suit was brought, and it was held barred. It would also appear that in that case various steps had been taken to set aside the order of dismissal in 1868. but that they had failed. We have not got that latter circumstance in the present ease; and moreover there is nothing in the arguments or in the judgment of their Lordships to show that th. 3 operation of Section 60 of the Transfer of Property Act was called in aid. In this connection as my brother Crump reminds me it is important to note that the Transfer of Property Act was not in operation at the date when the earlier suit in that case had been dismissed, Further, speaking for myself, the case relates to lands in Oadh, and I am not in a position to say what exactly is the position of the law as regards land tenure in Oadh, though no doubt it is the act that the Transfer of Property Act came into operation there in 1882 or thereabouts, whereas it did not apply to Bombay until 1891. Speaking therefore for myself I am in a position of some uncertainty as to whether in any event Section 60 of the Transfer of Property Act could have been resorted to in that particular case, and having regard to the fact that the ease was before the Privy Council and was argued by eminent counsal, there must, I think, have been some special reason why this particular section was not relied on.
10. On the other hand, as we have already indicated, we regard Section 60 as being the section on which this particular ease turns. A somewhat similar view appears to have been taken in the Allahabad High Court by Mr. Justice Griffin in 1909 in the case of Fateh Chand v. lagan Nath Pershad (1909) 2 I.C. 630. There too the first redemption suit had been dismissed for default, and the abova case of Thakur Shankar Baksh v. Dya Shankar was relied on, as here: as barring the second suit. The learned Judge, however, after considering the matter, overruled that contention, and followed the reasoning in a Full Bench case of the Allahabad High Court in Sita Bam v. Madho Lal I.L.R. (1901) 24 All, 44
11. Under these circumstances I would hold that the decision of Thakur Shankar Baksh v. Dya Shanlcar , is not a specific decision on the exact point which we have to consider, and that accordingly, with all respect, it does not apply here so as to bind our decision. Apart from that particular authority, we think that in the present case there was no order extinguishing the right of redemption within the meaning of a 60 of the Transfer of Property Act, and that accordingly this second suit for redemption was not barred.
12. Under those circumstances the appeal must be allowed, the decrees of the lower Courts set aside, and the case remanded to the trial Court to be dealt with according to law.
13. This point before us was really raised as a preliminary issue in the trial Court and in the lower appellate Court, and no other-issues have yet been determined. Accordingly we think the successful party, viz., the plaintiff, must got his costs on this preliminary issue throughout in all Courts. The suit will then be remanded to be heard on the remaining issues in the case.