1. This is an appeal on behalf of the defendant in a suit brought for redemption of a mortgage dated the 30th September 1881. The defence was that the suit was not maintainable by reason of the fact that in the year 1902 plaintiff and another person had instituted a similar suit for redemption of the same mortgage which suit had been dismissed under the provisions of Section 102 of the Code of Civil Procedure Act XIV of 1882, for default of prosecution. Both the Courts below have held that the suit was maintainable and have decreed the plaintiff's suit. On behalf of the appellant I have been referred to the provisions of Section 103 of the Code of Civil Procedure Act XIV of 1882, which provides that when a suit is wholly or partly dismissed under Section 102, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. It has been pointed out on behalf of the appellant that the parties to all interests and purposes are the same as in the previous suit, that the cause of action, namely, the seeking to redeem the mortgage of 1881 is identical and that the only point of difference between the two suits is that in the previous suit the date of the defendant's refusal to allow redemption was given as 10th May 1902 and in the present suit, the date is given as 15th July 1907. Reliance is placed on the ruling of their Lordships in the Privy Council reported in Shankar Baksh v. Daya Shankar 15 C. 422 : 15 I.A. 66. The head note to the report runs as follows:
To a suit, brought in 1883, for redemption of a mortgage made in 1853, of village in Oudh, subsequently included in the mortgagee's Talukadari estate and sanad the de-fence was that mortgagor, having brought a suit in 1864 to redeem and not having appeared at the hearing in person or by pleader, judgment was passed, the mortgagee having appeared to defend against the plaintiff under Section 114 of Act VIII of 1859 : Held, that although the plaintiff, who had claimed in the prior suit the under-proprietary right in virtue of a sub-settlement, claimed in the present suit the superior proprietary right, the difference in. the mode of the relief claimed did not affect the identity of the cause of action, which was, in both cases, the refusal of the right to redeem; and that under Section 114 of the Act the judgment of 1884 was final.
2. In that case the second suit had been brought in the year 1883, the first suit having been brought in 1864. Neither in the arguments as reported nor in the judgment, except for a reference to Section 83,' is there any reference to the provisions of the Transfer of Property Act (IV of 1882) regulating the rights of mortgagors in matters of redemption. The mortgage in the present case was a usufructuary one. The plaintiff alleges that the mortgage has been satisfied by the usufruct. It is quite possible in cases of this nature that the mortgagee might in the first suit show excellent reasons for refusing redemption, namely, that the mortgage had not been satisfied by the usufruct. It might also happen that on the date of the second refusal the mortgage had been satisfied out of the usufruct, and the plaintiff on account taken be entitled to succeed. The provisions of Section 13 of the Code of Civil Procedure (Act XIV of 1882) and those of Sections 60, 92 and 93 of the Transfer of Property Act (IV of 1882) were very fully considered by a Full Bench of this Court in Sita Ram v. Madho Lall 24 A. 44. In that case the plaintiffs had instituted a suit for redemption of a usufructuary mortgage and obtained a decree conditional on their paying a certain sum within a time specified in the decree. They failed to make the payment and some years later instituted a second suit for redemption. It was held that the second suit was not barred. It was pointed out that the right of a mortgagor to redeem continues till that right is extinguished by act of parties or by an order of Court (see Section -60, Act IV of 1882). In the present case it is not alleged that the plaintiff has by any act of his own extinguished his right of redemption. There is certainly no specific order of any Court extinguishing that right; and the reasons which lead the learned Judges, who decided the case just referred to, to hold that the decision in the, former suit did not operate as a bar to the second suit, appear to me to apply equally to the present case. The plaintiff was entitled to fall back on his rights conferred on him by law. The law declares that those rights shall not be extinguished unless by act of parties or an order of Court. The Courts below were right in holding that the suit was maintainable. I dismiss the appeal with costs.