Skip to content


Poosarla Venkata Ratnamma Power of Attorney Holder V. Someswara Rao Vs. Sivakoti Sundara Ratnamma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 801 of 1976
Judge
Reported inAIR1984AP169
ActsCode of Civil Procedure (CPC), 1908 - Order 2, Rule 2 - Order 34, Rule 14
AppellantPoosarla Venkata Ratnamma Power of Attorney Holder V. Someswara Rao
RespondentSivakoti Sundara Ratnamma and ors.
Appellant AdvocateC. Poornaiah, Adv.
Respondent AdvocateK. Venkataratnam, Adv.
Excerpt:
.....order 2 rule 2 as cause of action was identical with earlier suit - at time of filing of previous suit principal amount had already become due - it was obligatory on appellant to have included claim for principal also along with claim for interest - held, as appellant had not included principal amount in previous suit present suit for recovery of principal amount would be barred by order 2 rule 2 - appeal dismissed. - - as the defendants failed to pay interest on the mortgage amount the plaintiff filed a suit o. 473/1970 on the file of district munsif court, visakhapatnam, and a decree was passed for interest payable up to 23-9-1970. subsequent to the decree also the defendants failed to pay interest and also the principal and therefore the suit is filed. but although their..........is barred under order 2, rule 2, c. p. c., in view of the filing of the suit o. s. 473/1970. the suit filed by the power of attorney also is questioned as illegal and void. on the above pleadings appropriate issues were framed. the court below found that the suit mortgage bond is true, valid and binding on the defendants and the plaintiff's agent has power to sue on behalf of the plaintiff. it was held that the suit is barred under o. 2, r. 2, c. p. c., as the cause of action is identical with that of o. s. 473/1970.2. the learned counsel for the appellant contended that the prior suit o. s. 473/1970 was confined to the recovery of interest and personal decree and the present suit for principal and accrued interest as against the mortgaged property is not barred under o. 2, r. 2, c. p......
Judgment:

Ramarao, J.

1. The plaintiff is the appellant. This appeal arises out of a suit filed for recovery of the principal amount of Rs. 15,000/- and interest thereon on the foot of a mortgage. The defendants are the successors to late Sivakoti Laxmanrao and also Narayanrao and as such they are liable to pay the debt due under the mortgage executed by their predecessors. As the defendants failed to pay interest on the mortgage amount the plaintiff filed a suit O. S. 473/1970 on the file of District Munsif Court, Visakhapatnam, and a decree was passed for interest payable up to 23-9-1970. Subsequent to the decree also the defendants failed to pay interest and also the principal and therefore the suit is filed. The written statement was filed on behalf of the defendants stating that the plaintiff should be put to strict proof of passing the consideration and the mortgage does not bind the defendants. The plaintiff has to prove that the debt incurred is for the benefit of the joint family. Further, the present suit is barred under Order 2, Rule 2, C. P. C., in view of the filing of the suit O. S. 473/1970. The suit filed by the power of attorney also is questioned as illegal and void. On the above pleadings appropriate issues were framed. The Court below found that the suit mortgage bond is true, valid and binding on the defendants and the plaintiff's agent has power to sue on behalf of the plaintiff. It was held that the suit is barred under O. 2, R. 2, C. P. C., as the cause of action is identical with that of O. S. 473/1970.

2. The learned counsel for the appellant contended that the prior suit O. S. 473/1970 was confined to the recovery of interest and personal decree and the present suit for principal and accrued interest as against the mortgaged property is not barred under O. 2, R. 2, C. P. C. The learned counsel for the respondent contended that the former suit O. S. 473/1970 even though filed after expiry of two years restricted the claim to the interest only though the cause of action arose for the recovery of principal also and as such the present suit does not lie.

3. Order 2, Rules 1 and 2, C. P. C., are as follows:-

'1. Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.

2. (2) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.'

The width and stretch of the applicability of Order 2, Rule 2, C. P. C., is considered by the Privy Council in two decisions. In Muhammad Hafiz v. Mirza Muhammad Zakariya, AIR 1922 PC 23 the mortgage deed enabled the creditor to realise the interest alone or the principal inclusive of interest if the interest is not paid for six months and if the principal and interest is not paid after expiry of three years the mortgagee is entitled to realise the entire principal and outstanding interest. After expiry of three years the first suit was filed for recovery of interest alone and a year thereafter the suit was filed for recovery of the amount against the property. The Privy Council while holding that the second suit is barred observed that the creditor having exercised the option of suing for interest alone is precluded from filing the second suit. In Kishen Narain v. Pala Mal, AIR 1922 PC 412 the mortgage provided the payment of interest on the expiry of the first year and after there from the expiry of the first year and after there from the expiry of the first year and if the interest is not paid within three months it can be paid after six months (sic). The mortgagors can redeem within two years. If the interest is not paid as indicated above the mortgagee is empowered to cancel the fixed term of two years and to realise the amount from the mortgaged property. The interest was paid for some time but later the default was committed. After expiry of two years the suit was filed for interest only reserving the right to file another suit for principal and future interest. Having observed that the mortgages in England provide independent obligations to pay principal and interest and in such an event the cause of action is distinct, Lord Buckmaster held as follows:-

'The matter is, however, different if the non-payment of the interest causes the principal money to become due, as in that case the cause of action - the non-payment of the interest - gives rise to two forms of relief which the Court provides shall not be split. This is illustrated by the present suit. The interest was paid during the first year, and the interest in arrear was that under Clause 5. If, therefore, the plaint originally brought came to be properly interpreted as claiming only a personal relief in respect of the un-paid interest, the appellant's case would be on surer ground; but although their Lordships are anxious that claims for a just debt should not be defeated by the intricacies of legal procedure, yet they are unable to hold that the plaint that was originally issued by the appellant can properly bear their interpretation. The claim is for a decree for interest 'recoverable from the mortgaged property', and the other property and persons of the defendants. The perty and persons of the defendants. The words are not dissimilar to the words of Clause 5 of the mortgage deed, which clearly points to the interests being payable (that is by sale out of the mortgaged property). Their Lordships are unable to give any other interpretation of the phrase 'recoverable from the mortgaged property ... ... ....' In the appellant's plaint that a claim for realisation, and the fact that the decree he obtained was not a decree for sale but in the nature of a personal judgment, does not alter its effect for Rule 2 of Order 2 provides that every suit shall include the whole of the claim. The suit so brought by the plaintiff did not include it, and this consequently barred the institution of a further suit in respect thereof.'

Order 2, Rule 1 and 2, C. P. C., are designed to arrest the proliferation of litigation. Rule 2 interdicts the filing of different suits in respect of multiple reliefs springing from the same cause of action. In the event of a cause of action sprouting plurality of reliefs the suit comprising the entirety of reliefs has to be filed to save the bar under Rule 2. This provision seeks to get at nought the series of suits on the same cause of action. In the event of shrinking or confining the suit to some reliefs only the subsequent suit in respect of remainder reliefs is precluded. In the instant case the suit is filed for the interest alone initially and the subsequent suit is concerned with the entire amount. The mortgage deed Ex. A-2 dated 3-2-1965 for Rs. 15,000/- provided that the interest is payable once in three months and in default the same shall be payable together with interest and the principal and the arrears of interest shall be paid wihtin two years from the date of mortgage. O. S. 473/1970 was filed on 9-8-1970 for the recovery of interest only and for personal decree. By this time the cause of action for filing the suit for the amount of principal and interest ripened and instead of seeking for wider relief comprising principal and interest the claim is restricted to interest only. The cause of action for both the prior and subsequent suits is the mortgage deed only. The mortgage deed did not provide for independent and distinct obligations for principal and interest. If the suit is filed before the expiry of two years for interest alone the subsequent suit for principal would not have been barred as the cause of action has not blossomed by that time. Therefore, O. 2, R. 2, C. P. C., clearly bars the suit. The learned counsel for the appellant contended that the prior suit is for a personal decree only and the bar comes into play when both the suits are for the sale of the mortgaged property relying upon the observations in second Privy Council case. It is true that in the Privy Council case both the suits are for recovery from the mortgaged property and Lord Buckmaster categorically observed that every suit shall include the whole of the claim and even if the prior suit ended in a personal decree the position is not altered.

4. The learned counsel for the appellant relied upon a decision of the Rajasthan High Court in Ramanath v. Karnidan, . In this case the mortgage was for a sum of Rs. 4,000/-. The mortgage stipulated the payment of interest every month and on failure to pay interest for six months at any time such interest accrued would be treated as principal and interest was payable on the said amount. In the event of failure to pay the entire amount on demand the mortgagees are entitled to file a suit for decree by sale of the mortgaged property and personal decree as well and further the mortgagees have a right to file a separate suit for personal decree for arrears of interest alone. Initially the mortgagees instituted a suit for recovery of Rs. 797/- towards interest and in this suit the personal decree was sought for against the defendants. The suit was decreed on 8-10-1959. The mortgagees filed a second suit for recovery of the principal sum of Rs. 4,000/-. After survey of several decisions Modi, J., held as follows:

'There was an independent or distinct obligation on the part of the defendants in the present case to pay interest even if the principal had not fallen due and it was distinctly provided in the mortgage deed itself that it would be open to the mortgagees to bring a separate suit for the recovery of the interest which may be in arrears. The first suit for interest which was brought by the plaintiffs prayed for a personal decree only had nothing to do with the mortgage security as such. The present suit which is brought only for the recovery of the principal amount incidentally without interest seeks the recovery of the money by sale of the mortgage security. This suit, therefore, is clearly saved from the impact of Order 2, Rule 2, C. P. C., and is perfectly maintainable.'

In Rajasthan's case the mortgage follows the pattern of mortgages in England wherein independent obligation to pay principal and interest is provided and in such a situation two separate suits are permissible and this distinction was pointed out by Lord Buckmaster in AIR 1922 PC 412 (supra). On the day when the suit was filed for Rs. 797/- towards interest the cause of action for filing the suit for principal did not arise. It is patent that Rajasthan case has no intimacy with the facts of the instant case.

5. In Chunnilal v. Amir Ahmed Bee, 1958 Andh LT 275 : (AIR 1958 Andh Pra 608) the mortgage was for a sum of Rs. 11,000/- with a condition to pay interest every month and compoundable every year with a further stipulation that if the mortgagor fails to pay interest for six months the mortgagee would be entitled to recover the arrears of interest or whole of the amount notwithstanding the stipulation for payment in five years. The debtor committed default in payment of monthly instalments of interest and thereupon a suit was filed on 24-6-1960 for recovery of the interest amount. This suit was decreed ex-parte. Thereafter the mortgagee filed another suit for recovery of the principal amount on 1-9-1962. The defendant took the objection that the suit is barred under Order 2, Rule 2, C. P. C. In the context of considering this plea the Division Bench of this Court consisting of Manohar Pershad and Kumarayya, JJ. Held as follows at page 279 (at p. 610 of AIR) :

'Inasmuch as at the time of the filing of the previous suit the principal amount had already become due, it was obligatory on the appellant to have included the claim for the principal also along with the claim for interest. As the appellant had not included this amount in the previous suit, the present suit for recovery of the principal amount would be barred by Order 2, Rule 2.'

6. The learned counsel for the respondent endeavoured to press into service O. 34, R. 14, C. P. C., which provides that where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage and he may institute such suit notwithstanding O. 2, R. 5, C. P. C. Order 34, R. 14 facilitates the decree-holder under a simple money decree to file a suit to bring mortgaged property to sale and Order 2, Rule 2 does not come in the way. Therefore, O. 34, R. 14 is designed to cover a different situation and is not concerned with the operation of O. 2, R. 2.

7. In the circumstances the judgment of the Court below is confirmed. Appeal dismissed with costs.

8. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //