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David Hay Vs. Razi-ud-dIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All202
AppellantDavid Hay
RespondentRazi-ud-dIn and ors.
Excerpt:
.....sections 92, 93 - mortgage--redemption--decretal money not paid within the time limited--second suit for redemption, barred--civil procedure code, section 13--res judicata. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section..........by the fact of the mortgage being wholly or partially usufructuary. muhammad husain brought a suit for redemption after the expiration of six years and obtained a decree for redemption in february 1884. the decree did not comply with section 92 of the transfer of property act in that it did not specify what should take place in case the mortgage money was not paid within the period limited in that respect. the mortgage money was not paid either then or at all. under that decree the mortgagee did not apply for an order under section 93 of the transfer of property act. the plaintiff in this suit, having a decree for money against muhammad husain, brought muhammad husain's interest in the mortgaged premises to sale, and at the auction sale purchased that interest. that was subsequently.....
Judgment:

John Edge, Kt., C.J. and Burkitt, J.

1. In 1876 one Muhammad Husain mortgaged with possession a five-biswa share in a village named Sajauli to one Bahauddin. The terms of the mortgage were that the period should be for six years; that the money advanced, namely Rs. 1,000, might be repaid on the expiry of six years; and that, on repayment of that money together with any arrears of rent due by tenants at that time, the mortgagor should have redemption. The mortgage was usufructuary only so far as interest was concerned, the usufruct being taken instead of interest. We mention the fact, although we do not think that the principle which must guide us in this case would be affected by the fact of the mortgage being wholly or partially usufructuary. Muhammad Husain brought a suit for redemption after the expiration of six years and obtained a decree for redemption in February 1884. The decree did not comply with Section 92 of the Transfer of Property Act in that it did not specify what should take place in case the mortgage money was not paid within the period limited in that respect. The mortgage money was not paid either then or at all. Under that decree the mortgagee did not apply for an order under Section 93 of the Transfer of Property Act. The plaintiff in this suit, having a decree for money against Muhammad Husain, brought Muhammad Husain's interest in the mortgaged premises to sale, and at the auction sale purchased that interest. That was subsequently to the decree for redemption. The plaintiff has now brought a suit to redeem the mortgage of 1876. The first Court decreed the claim. The District Judge in appeal dismissed the suit, holding that the suit was barred by Section 13 of the Code of Civil Procedure. The plaintiff has brought this appeal.

2. Pandit Sundar Lal has contended on behalf of the appellant that in a suit for redemption, when the decree does not provide for the event of the redemption money not being paid within the time limited, the mortgagor or his assignee, as soon as the decree for redemption becomes time-barred by reason of limitation, is entitled to bring a fresh suit for redemption. It is contended that, in cases where the mortgage is usufructuary, a decree in a suit for redemption which does not provide what shall be done in the event of the money not being paid is merely of the character of a declaratory decree and would not preclude a second suit, and that argument was supported by certain authorities. The earliest of those authorities is Sami Achari v. Somasundram Aohari I.L.R. 6 Mad. 119. That case was followed in Periandi v. Angappa I.L.R. 7 Mad. 423. Those cases, if good law, would entirely support Pandit Sundar Lal's contention. It appears to us that, if those cases are good law, a mortgagor is only limited as to the number of suits which he may bring to redeem the same mortgage by the length of his life or by the sixty years provided by the Limitation Act. Those cases were followed apparently in Ramunni v. Brahma Dattan I.L.R. 15 Mad. 366. It appears to us that the view of the law to be found in those cases is not supported by the law as administered in such matters in England, or by the law as enacted in the Code of Civil Procedure, or the Transfer of Property Act. No doubt the Transfer of Property Act was passed after the two first case a had arisen and been decided. Pandit Sundar Lai also relied upon the decision of this Court in Muhammad Sami-ud-din Khan v. Mannu Lal I.L.R. 11 All. 386. It appears to us that the decision in that case was contrary to the decision of the Full Bench of this Court, and further that the decision was wrong, and also that the lesson to be learnt from the Transfer of Property Act is that such a suit as this could not be maintained, In our opinion the decision of the Full Bench in Sheikh Golam Hoosein v. Musumat Alia Rukhee Beebee N.W.P. H.C. Rep. 1871 p. 62, was not affected by the Transfer of Property Act, and is in harmony with that Act and is perfectly sound law. This question has been considered by the High Court at Bombay in Maloji v. Sagap I.L.R. 13 Bom. 567, and, if we may say so, we entirely agree with the view of the law on this point expressed in that case. The precise point does not appear to have been decided by their Lordships of the Privy Council in Hari Ravji Chiplunkar v. Shapurji Shet I.L.R. 10 Bom. 461, but there is nothing in the judgment of their Lordships in that case to encourage the opinion that, where a decree for redemption has been obtained, the mortgagor can bring a second suit for redemption. In our opinion it was the intention of the Legislature, as expressed in Sections 92 and 93 of the Transfer of Property Act, that there should be one suit only for redemption. We further think that the allowance of a second suit for redemption would be to go contrary to the principle of Section 244 of the Code of Civil Procedure, and that the fact that a mortgagor has failed to comply with his decree for redemption within time cannot give him a fresh cause of action. His original cause of action for redemption, it appears to us, was extinguished. It also appears to us that Section 13 of the Code of Civil Procedure would preclude a second suit upon the same cause of action. We dismiss this appeal with costs.


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