1. The only point in this case was a pure point of law, but in my opinion the view taken by the Courts below on that point is correct.
2. There was a usufructuary mortgage executed on the 7th April 1891, in favour of defendant's predecessor. In 1907, the plaintiff's predecessor brought a suit for redemption of the mortgage and for recovery of a certain amount as surplus on the allegation that the mortgage debt had been satisfied out of the usufruct and that there was a balance in his favour. The Court found that the mortgage debt had been fully satisfied and had in fact been overpaid. The suit was accordingly decreed not only for possession but also for a sum of Rs. 39 as surplus profits. The plaintiff's predecessor unfortunately died soon after and no steps were taken to execute that decree. The result was that the execution of that decree became barred by time and in fact more than 12 years have expired. The plaintiff then instituted a fresh suit for redemption alleging that the mortgage was still subsisting and that his equity of redemption was still intact. The Courts below however have dismissed the suit holding that his claim is not maintainable.
3. It is true that the previous suit originally was a suit for redemption but when the Court found that the mortgage had been satisfied and that in fact a surplus amount was due to the plaintiff's predecessor, the decree that was passed was really a decree for possession together with a decree for the surplus amount. The form in which the decree was prepared was the printed form under Section 92 of the Transfer of Property Act, but it had the second portion of it cub out, which would have become necessary only if any amount had to be paid by the plaintiff.
4. In my opinion therefore the decree was purely a decree for recovery of possession and recovery of money. After the passing of that decree the rights of the mortgagor and the mortgagee became merged in the decree, and the mortgage was no longer subsisting. The plaintiff's remedy therefore was to take possession by execution, of that decree and to realise that surplus by execution. If owing to the laches of his predecessor or himself he has allowed his remedy by way of execution to become barred by time it is no longer open to him to evade the law of limitation and bring a new suit with a view to seek the same relief. The decree that was passed in the previous case was really a decree which would be passed under the new Code under Order 41, Rule 11 though no such provision was expressly embodied in the Transfer of Property Act.
5. It has been laid down in Ramanand v. Jairam (1920) 18 A.L.J. 1001, that when a person obtains a decree for recovery of possession of property and allows it to be barred by time a separate suit on that decree cannot be maintained. The case of Sita Ham v. Madho Lal (1901) 24 All. 44 is clearly distinguishable because in that case the plaintiff bad to pay a certain amount of money and the decree provided that if payment was not made within the time fixed 'the judgment should be deemed to be non-existent.' The rule of law laid down in that case cannot be extended so as to apply to the facts of this case.
6. I therefore dismiss the appeal summarily.