1. In this case the plaintiff is the occupancy tenant of a certain holding. By a deed, dated February the 16th, 1899, that is to say, before the Agra Tenancy Act (Act II of 1901) came into force, she mortgaged this holding with possession to the defendant. She now brings this suit for redemption upon tender of Rs. 90, the amount of the mortgage-debt. The defence is that the plaintiff is debarred from bringing this suit by reason of the result of a previous suit brought by her in the year 1909. It appears that this former suit was not framed precisely as a suit for redemption, but at any rate it ended in a decree dated November the 22nd, 1909, the effect of which was that the plaintiff might recover possession of the holding in question, subject to her first paying within thirty days the sum of Rs. 90 found to be due to the defendant. An appeal having been preferred against this decree, the plaintiff was foolish enough to neglect the fulfilment of the condition imposed upon her and failed to deposit the sum of Rs. 90 within the prescribed period. The subsequent dismissal of the defendant's appeal on March the 18th, 1910, left her without any decree of which she could claim execution. She now brings this second suit as a suit for redemption based upon a tender of the mortgage money made subsequently to the decree in the former suit. The question is whether this suit is maintainable. The decision must obviously be governed by the ruling of the Full Bench of this Court in Sita Ram v. Madho Lal 24 A. 44 and by the principles involved in that ruling. I cannot put the case for the defendant more strongly than this: if the former suit of 1909 had ended in a simple decree for possession in favour of the plaintiff, and the plaintiff had neglected to obtain execution of that decree within limitation, she could never have brought a second suit for recovery of possession, no matter how good her title might be. Now the suit actually ended in a decree for possession subject to a certain condition. Failure to comply with that condition left the plaintiff with no decree that she could execute, and it is argued that there is no more reason for allowing her to bring a fresh suit in the one case than in the other. This argument is not without real force, but it overlooks the fact that the decree in the former suit involved, in a sense, a declaration that the parties occupied towards one another the position of mortgagor and mortgagee. When once this is realised, there seems to me no argument in favour of the defendant in the present suit which is not equally an argument against the correctness of the decision of this Court in Sita Ram v. Madho Lal 24 A. 44. I think it may be said that the Honourable Judges of other High Courts, who have refused to accept the view of the law taken by this Court in the decision above referred to, have proceeded in the main upon the lines that a distinction must be drawn between a mortgagor's title as such, and the existence of a legal remedy still available to the mortgagor for the enforcement of the same. In one form or another it seems to me that this argument was considered and rejected by all the learned Judges who decided the case of Sita Ram v. Madho Lal 24 A. 44. The decision of this Court proceeds on the assumption that a mortgagor's right to redeem continues until it is expressly taken away by some decree of a competent Court, that is to say, by some decree which in express terms has the effect of extinguishing that right. Otherwise the mortgagor, in the view taken by this Court, has a fresh' cause of action, every time he tenders or deposits in Court the amount of the mortgage-debt, and he could not be debarred from bringing a fresh suit merely by the allegation that it was a suit based upon the same cause of action as some former suit brought by him. To put the point in another way, this Court holds that the cause of action in a suit for redemption is the mortgagor's title plus a valid tender or the deposit of the mortgage-debt. Unless, therefore, there has been a decree which makes it impossible for the mortgagor to make a valid tender or deposit, his right to do so continues. If we turn to the provisions of Section 92 of the Transfer of Property Act, it cannot be denied that they afford considerable support to the position taken up by this Court. It is evident that one of the objects of the Legislature in enacting this section was to provide against multiplicity of suits for redemption. If the provisions of that section are properly carried out, every suit for redemption must end in a decree which will have the effect of finally extinguishing the right to redeem. Now, the very fact that such elaborate provision has been made in this section for the sake of securing the above result suggests that, in the absence of such provision, a fresh suit for redemption upon a new cause of action would lie every time the mortgage debt was tendered or deposited. The point seems to me clearer still if we consider the special provisions in the case of usufructuary mortgages. A usufructuary mortgagee as such has no right to bring the property to sale. Nevertheless, the Legislature has thought fit to direct that, in a suit for redemption where the mortgage is usufructuary, the alternative decree in the event of the plaintiff's failing to make the required payment within the prescribed period shall be one for sale of the mortgaged property. The reason for this obviously is that the Legislature did not intend that the holder of a usufructuary mortgage should, under any circumstances, obtain a decree for foreclosure pure and simple, or a decree which should have the effect of a foreclosure. In order to prevent this, and yet at the same time to protect usufructuary mortgagees from the danger of a multiplicity of suits for redemption, the Legislature adopted the only possible alternative, by providing that in the event of the plaintiff failing to avail himself of his decree for redemption, the mortgaged property should be put for sale. By so doing, the Legislature secured for the benefit of the mortgagor whatever difference there might be between the market-value of the mortgaged property and the amount of the mortgage-debt. It was, no doubt, in order to secure this benefit for the mortgagor that the Legislature refused to allow usufructuary mortgagees an alternative decree for foreclosure. It seems to me, therefore, that, but for one peculiar feature to which I am about to refer, the case for the defendant in the present suit is, upon any reasonable application of the ruling of this Court in Situ Ram v. Madho Lal 24 A. 44 scarcely arguable at all. The mortgagee was himself a party to the former suit; if he wanted to protect himself against the possibility of a further suit for redemption, it was his business to see that the alternative decree, which was the decree which he himself might have to execute, was properly passed in accordance with the provisions of Section 92 of the Transfer of Property Act. By failing to do this, he would lay himself open to a fresh suit for redemption, because the mere dismissal of a plaintiff's suit for redemption does not in itself bar the bringing of a fresh suit upon a fresh cause of action.
2. The peculiar feature of this case, of course, is that the mortgaged property was not saleable. It was an occupancy holding, and it could not have been put up for sale either under the provisions of the former North-Western Provinces Rent Act (XII of 1881) or under those of the present Agra Tenancy Act (II of 1901). I can only say that it does not seem to me that this circumstance should be allowed to put the mortgagee in any better position. He accepted a mortgage of a right which he knew not to be permanently transferable. As the law now stands cases of this sort will not arise again, because it is now settled that an occupancy-holding may neither be sold nor mortgaged with possession. As the law formerly stood, the possibility of a temporary transfer by way of usufructuary mortgage was admitted but there is force in the position taken up by the learned District Judge in his decision in the present case, that to permit such temporary transfer to become permanent, by holding that the dismissal of the former suit has debarred the plaintiff for ever from her right to redeem, would be to defeat the provisions of the law against the transferability of such holding. It does not seem to me an unreasonable position to take up, to say that a defendant who accepted a usufructuary mortgage of an occupancy-holding prior to the passing of the Agra Tenancy Act (II of 1901) must be held to have done so with a knowledge of any inconvenience to which he might be subjected by reason of the fact that the property taken by him on mortgage was not permanently transferable. One of these inconveniences was that no Court could ever give him a decree for sale under Section 92 of the Transfer of Property Act. This seems to me no good reason for holding that a decree merely dismissing the plaintiff's suit for redemption must, therefore, be held to operate as a decree for foreclosure in favour of the mortgagee, when it was the clear intention of the Legislature that no such decree should ever be passed in the case of a usufructuary mortgage. It seems to me preferable to hold, on the contrary, that the defendant in this case, by accepting a usufructuary mortgage of a holding not legally transferable, has left himself open to a series of suits for redemption, because it was impossible for the Court to give him in any conceivable suit any form of decree, either for foreclosure or for sale, which could have the legal effect of finally extinguishing the mortagor's right to redeem. I accordingly dismiss this appeal with costs.