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Ghudansaheb Mahibubsaheb Pirjade Vs. Allavali Abutrao Kazi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case Number Second Appeal No. 784 of 1971
Judge
Reported in(1979)81BOMLR275
AppellantGhudansaheb Mahibubsaheb Pirjade
RespondentAllavali Abutrao Kazi
DispositionAppeal dismissed
Excerpt:
.....competent to institute a suit to redeem.;in 1880 a mortgaged her right, title and interest in the suit property in favour of m. in 1909 a suit was filed by g, who claimed to be a nephew of a and also her surety, t oredeem;the mortgage. the right to redeem was disputed by the mortgagee or his successors. g's right to redeem was not accepted and the suit was dismissed on that ground and on appeal the dismissal of the suit was confirmed.;in 1968, the plaintiffs, who were successors-in-interest of g, filed the present suit alleging that as co-owners of the mortgaged property they were entitled to redeem the property. the suit was dismissed on the ground that it was barred by res judicata and the decree was confirmed on appeal. on second appeal by the plaintiffs.;that the right of g to..........of a mortgage. in or about the year 1880 one ashabi mortgaged her right title and interest in the suit property in favour of mahmed abdul karim mahmed abutrao. in the year 1909 the suit was filed being suit no. 97 of 1909-1910 by one gaisoddin to redeem that mortgage alleging that he was the nephew of ashabi and also was a surety for the mortgagor. the right to redeem was disputed by the mortgagee or his successors-in-interest and gaisoddin's right to redeem was not accepted and the suit was dismissed on that ground. that decision was confirmed in appeal being appeal no. 10 of 1910-11. in the year 1968 the plaintiffs filed the present suit as co-owners in respect of the mortgaged property. it is not disputed before me that the plaintiffs are the successors-in-interest of gaisoddin who.....
Judgment:

R.M. Kantawala, C.J.

1. The plaintiffs have filed this appeal against a concurrent decree passed by both the Courts dismissing their suit for redemption of a mortgage. In or about the year 1880 one Ashabi mortgaged her right title and interest in the suit property in favour of Mahmed Abdul Karim Mahmed Abutrao. In the year 1909 the suit was filed being suit No. 97 of 1909-1910 by one Gaisoddin to redeem that mortgage alleging that he was the nephew of Ashabi and also was a surety for the mortgagor. The right to redeem was disputed by the mortgagee or his successors-in-interest and Gaisoddin's right to redeem was not accepted and the suit was dismissed on that ground. That decision was confirmed in appeal being Appeal No. 10 of 1910-11. In the year 1968 the plaintiffs filed the present suit as co-owners in respect of the mortgaged property. It is not disputed before me that the plaintiffs are the successors-in-interest of Gaisoddin who instituted the suit in the year 1909 for redemption. In this suit they wanted to allege that as co-owners of the mortgaged property they were entitled to redeem the property. The suit was resisted by the defendants who are the successors-in-interest of the mortgagee. The trial Court held that the present suit for redemption was barred by res judicata in view of the judgment in suit No. 97 of 1909-10 and Appeal No. 10 of 1910-11 and that decree of the trial Court was confirmed in appeal by the learned Assistant Judge, Sholapur. It is against this concurrent decree passed by both the Courts dismissing the plaintiffs' suit on the ground of res judicata that the present appeal is filed by the plaintiffs.

2. Mr. Rege on behalf of the plaintiffs submitted that both the Courts were in error in holding that the decision in the earlier suit operated as res judicata in the present suit. He submitted that unless by the decree passed in the earlier suit the right to redeem of the plaintiffs or their predecessors-in-title was extinguished a fresh suit for redemption is always competent so long as the remedy to enforce this right is not barred by limitation. He submitted that in the earlier decree the right to redeem of a co-owner was not asserted by Gaisoddin and that did not come in the way of the plaintiffs asserting their right on that footing. In short, his submission is that the principle of res judicata laid down in Section 11 of the Code of Civil Procedure does not operate as a bar to a subsequent suit for redemption of the same mortgage unless the right to redeem is extinguished either by act of the parties or by decree of the Court. As in the present case the right to redeem was not extinguished in the manner contemplated by law the present suit by the plaintiffs on the footing that they were the co-owners of the mortgaged property was competent and both the Courts were in error in holding that the present suit was barred by res judicata in view of the decision in the earlier suit.

3. It is a well-settled principle of law that once a mortgage is always a mortgage and the right to redeem conferred by Section 60 of the Transfer of Property Act subsists unless it has been extinguished by act of the parties and by decree of the Court. It is equally well-settled that simply because an earlier suit for redemption had been instituted and a decree was passed therein but payment was not made in accordance therewith, the right to institute a subsequent suit by the mortgagor or his successors-in-interest to redeem the mortgage is not lost and even a subsequent suit will be competent unless the right to redeem is extinguished in the manner indicated in Section 60 of the Transfer of Property Act or the remedy is barred by the Limitation Act.

4. What we are concerned with in the present case is a different thing altogether. If a party's right to assert a right of redemption is taken away in the manner contemplated by law, is he competent to institute a suit to redeem? Section 91 of the Transfer of Property Act enumerates the classes of persons who are entitled to redeem or institute a suit for redemption. They are (a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same; (b) any surety for the payment of the mortgage-debt or any part thereof; or (c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property. In the earlier suit instituted in the year 1909 Gaisoddin asserted the right to redeem the mortgage on the footing that he was a nephew of Ashabi and also a surety for the mortgagor and was therefore entitled to redeem. That suit for redemption filed by Gaisoddin was dismissed in view of the finding of the Court that Gaisoddin was not entitled to redeem the mortgage. It is true that one of the grounds, which is asserted by the plaintiffs in the present suit with a view to exercise their right to redeem, namely, that they are the co-owners of the property in which a share belonged to Ashabi and mortgaged by her, was not pleaded by Gaisoddin in the earlier suit. When such a right was not pleaded by Gaisoddin in the earlier suit, are the plaintiffs who are the successors in interest of Gaisoddin entitled to file a suit in the year 1968 on the footing that since the right to redeem on the basis of they being co-owners of the mortgaged property was not asserted in the earlier suit, the present suit is not in any way affected by the decision given in the earlier suit? Section 11 of the Code of Civil Procedure provides:

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a. former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such Issue has been subsequently raised, and has been heard and finally decided by such Court.

It is not disputed in the present case that the plaintiffs are the successors-in-interest of Gaisoddin who instituted a suit in the year 1909 for redemption. In the said suit either the mortgagee or his successors-in-interest were party defendants. In the present suit the successors-in-interest of the mortgagee are party defendants. The earlier suit for redemption was dismissed on the ground that Gaisoddin was not entitled to redeem the mortgage. Thus the right of Gaisoddin to redeem the mortgage was directly and substantially in issue in the earlier' suit and the decision of the Court was against Gaisoddin and the suit was dismissed. It is undoubtedly true that Gaisoddin in the earlier suit had not asserted his right to redeem as a co-owner of the mortgaged property even though he occupied that position. Such a right is asserted for the first time by the plaintiffs who are the successors-in-interest of Gaisoddin.. The question is, whether the existence of such a fact will prevent the operation of the bar of res judicata taking place. As regards matters directly and substantially in issue in the earlier suit, the provisions of explanation IV to Section 11 of the Code of Civil Procedure should be borne in mind. That explanation clearly lays down: that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. It cannot be disputed that it was open to Gaisoddin to assert the right of redemption on the footing of he being a co-owner but he has for reasons best known to him omitted to do so. It was a matter which must have been directly in issue and under explanation IV of Section 11 of the Code of Civil Procedure it ought to have been raised in the earlier suit. It is quite clear that a party approaching a Court for any relief must assert all causes of action on the basis of which he is entitled to enforce his rights. If he omits to do so, then he is precluded from asserting such rights on the cause of action omitted to be asserted while instituting the earlier suit. If it was open to Gaisoddin to assert a right to redeem on the footing that he was a co-owner, but he omitted to do so, then having regard to the provisions of explanation IV to Section 11 of the Code such right shall be a deemed to have been a matter directly and substantially in issue in such suit and since the earlier suit was decided against Gaisoddin, it must be deemed to have been negatived. Thus, in my opinion both the Courts were right in taking the view that the present suit by the plaintiffs who are the successors in interest of Gaisoddin is barred by res judicata in view of the decision in the earlier suit instituted in the year 1909.

5. It was, however, urged by Mr. Rege that a procedural defect does not debar a party from instituting a fresh suit for redemption unless the right to redeem is extinguished. Reliance was placed by him upon the decision of the Bombay High Court in the case of Rajaram Vithal v. Ramchandra Pandu (1947) 50 Bom. L.R. 45. In that case the Full Bench of this Court held that where a suit to redeem a mortgage abates by reason of the death of the mortgagor, a second suit brought by his heirs to redeem the mortgage is maintainable by virtue of Section 60 of the Transfer of Property Act, 1882, notwithstanding the provisions of Order XXII, Rule 9 of the Civil Procedure Code, 1908. The Full Bench in this case has held following the decision of the Privy Council in Raghunath Singh v. Hansraj Kunwar , that the right of redemption cannot be taken away from the mortgagor, except in the manner and to the extent provided by Section 60 of the Transfer of Property Act; that the abatement of the suit is not a decree of the Court which extinguishes the right of redemption and that the procedural effect of Order XXII, Rule 9 cannot override the express provisions of Section 60.

6. The other decision to which reference was made by Mr. Rege is the decision of the Federal Court in the case of China Subba Rao v. Mattapalli (1949) 52 Bom. L.R. 181. The Federal Court has there taken the view that the right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage itself subsists. The right of redemption can be extinguished as provided in Section 60 of the Transfer of Property Act and when it is alleged to have been extinguished by a decree, the decree should run strictly in accordance with the form prescribed for the purpose. Unless the equity of redemption is extinguished, a second suit for redemption by the mortgagor, if filed within the period of limitation, is not therefore barred. If the right of redemption is not extinguished, provisions like Order IX, Rule 9, or Order XXIII, Rule 1 of the Civil Procedure Code, will not debar the mortgagor from filling a second suit, because, as in a partition suit, the cause of action in a redemption suit is a recurring one. The cause of action in each successive action, until the right of redemption is extinguished or a suit for redemption is time-barred, is a different one.

7. In none of these cases the Courts were concerned with the question with which we are concerned in the present case. In the earlier suit one of the matters which was directly and substantially in issue was whether Gaisoddin was entitled to a right to redeem. That issue was answered against Gaisoddin and it was on that footing that the suit for redemption filed by Gaisoddin was dismissed, If Gaisoddin had no right to redeem by reason of the said decision, his successors-in-interest cannot assert their right subsequently to redeem the same mortgage. The decision in the earlier suit on such an issue would operate as res judicata not only when the issue was directly and substantially raised and decided but also when it ought to have been raised but was not raised and was deemed to have been raised and decided. As the right to redeem was not upheld in the earlier suit, even on the ground of plea of co-ownership which was asserted for the first time that right is constructively barred by res judicata having regard to the provisions of the explanation IV to Section 11 of the Code of Civil Procedure. I am not concerned in the present case with a case of extinction of the right to redeem. If a man has no right to redeem the question of extinction of his right does not arise. Thus none of the two authorities on which reliance is placed by Mr. Rege is of any assistance to him with a view to contend that both the Courts were in error in taking the view that the present suit was barred by res judicata in view of the decision of the suit instituted in the year 1909. I am not concerned with a case of an earlier suit being dismissed on the ground of procedural defect but I am concerned with a case where a substantive right to redeem was asserted but was not recognised by the Court. In such a case the principles of constructive res judicata will always be operative and if by application of that principle the right is lost, it is lost once for all. Thus, in my opinion, it is not possible for me to accept the contention of Mr. Rege that both the Courts were in error in taking the view that the present suit was barred by res judicata.

8. In the result, the appeal fails and. is dismissed with costs.


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