1. This appeal presents only a question of Jaw for determination, the facts being all admitted.
2. The history of the ease is briefly this. There was a mortgage by father and son Earn Saran Singh and Mahadeo in favour of the predecessor-in-title of the defendants. Mahadeo brought a suit for redemption after having deposited in Court the full amount of the mortgage money, viz., a sum of Rs. 100, under Section 83 of the Transfer of Property Act. Evidently because the mortgagees did not withdraw the money from Court, Mahadeo brought a suit for redemption and a decree was spassed in his favour on the 26th of June, 1918. The language of the decree is important and is as follows:
That the suit for possession by redemption >of the mortgage get up by the plaintiff be decreed and the claim for mesne profits up to the date of the suit be dismissed. The plaintiff will get pendente lite and future mesne profits, the amount of which will be determined in the execution department, If the amount of the mortgage money Rs. 100, deposited by the plaintiff under Section 83 of the Transfer of Property Act has been withdrawn, he is given six months' time from to-day to pay into Court the said sum, failing which the mortgaged property will be sold. If the deposit under 8. 83 of the Transfer of Property Act has not been withdrawn defendants will be entitled to withdraw it.
3. As happened to be the ease, the money deposited under Section 83 of the Transfer of Property Act was still in Court and was actually withdrawn by the mortgagees on the 6th February, 1919. Mahadeo knew that the mortgage money was already in Court and he accordingly applied at once for delivery of possession. This application was made on the 25th of July, 1918. Unfortunately, however, this application was dismissed for default on the 13th of November, 1918. After having presented the application for delivery of possession Mahadeo gifted away the plaint property to one of his sister's sons Ram Jagat. Ram Jagat died and his four brothers the plaintiffs Nos. 2 to 5 inherited his property. They and the plaintiff No. 1 who obtained a portion of the property from the other plaintiffs by a deed of exchange have launched a fresh suit to redeem the property which is still in the possession of the defendants the representatives of the original mortgagees.
4. The question that has to be answered is whether the suit is barred as res judicata.
5. The suit succeeded in the Court of first instance, but the learned Judge of the Court below was of opinion that the suit was barred.
6. On the authorities of this Court, there can be no two opinions on the point that if the right of redemption still subsists, not having been extinguished either by an act of the parties or by an order of the Court, a second suit for redemption would lie. Nobody says that the right of redemption has been extinguished by an act of the parties. The only question therefore, is whether the decree that was passed on the 26th of June, 1918, had the effect of extinguishing the right of redemption that initially lay in Mahadeo.
7. Incidently, I may mention here that it was contended on behalf of the appellants that the order that would extinguish the right of redemption should be an order purporting to extinguish that right. This contention has no force, not only because it does violence to the language of para 2 of Section 60 of the Transfer of Property Act but also because the only order which is pointed out in argument as the only order of the Court which can extinguish a right of redemption, viz., the order under Rule 8, Order 134, C.P.C. does not at all speak of extinction of a right of redemption. It is clear, therefore, that all that is necessary to bar a second suit is an order of the Court which would have the effect of extinguishing the right of redemption.
8. This brings us to the consideration of the decree that was passed by the Court on the 26th of June, 1918. It must be conceded that the decree that was passed is not a decree in accordance with the terms of Order 134, Rule 7 of the C.P.C. That order merely contemplates that in future payment will be made by the mortgagor. In this particular case the mortgage money was in deposit in Court and the learned Munsif authorised the mortgagees by his decree to take away that money in satisfaction of the mortgage. This decree I need hardly repeat is not in accordance with the decree contemplated by Rule 7, Order 34, C.P.C. The money was, as a matter of fact, withdrawn later on. But before this was done Mahadeo was advised that he was entitled under the decree to ask for delivery of possession. I do not think that in this he was wrongly advised. Because the money was there to be taken away by the mortgagees whenever they wanted to do so. If they put off taking the money away from the Court for years that fact could not prevent Mahadeo from asking for delivery of possession. The decree that was passed was, so to say, a combined decree under Order 34, Rule 8, C.P.C. As it permitted the mortgagees to withdraw the money the result was bound to follow, viz., the extinction of the mortgage. All that remained to be done was to take over possession from the mortgagees. The mortgage money having been satisfied under the orders of a Court, it cannot be said that the right of redemption still exists.
9. A large number of rulings were cited by the learned Counsel for the appellants but I have not thought it necessary to discuss them in my judgment, for the simple reason that each case was decided on the language of the decree that was passed in the former suit for redemption or for sale.
10. I agree with the Court below that the suit is barred as res judicata and dismiss the appeal with costs which will include Counsel's fees in this Court on the higher scale.