C.A. Vaidialingam, J.
1. In this Civil Miscellaneous Appeal Mr. P. G. Parameswara Panicker, learned counsel for the 2nd defendant appellant attacks the decree of the learned Subordinate Judge of Alleppey, setting aside the decree passed by the trial Court dismissing the plaintiff's suit O. S. 192/58, and remanding the same for further consideration on all other issues.
2. It is seen that the plaintiff had obtained two chitty hypothecation bonds, evidenced by Exts. P-4 and P-5 dated 2-5-1124 and 20-64124 respectively. Ext. P-4 was executed by the 1st defendant, the 8th defendant and one Somasundaram Pillai. Ext. P-5 was executed by the 1st defendant and Somasundaram Pillai. Defendants 2 to 7 to the action are the legal representative of deceased Somasundaram Pillai. There is no controversy that plaintiff instituted a suit originally in the Munsiff's Court, Alleppey, an O. S. 194/1125, for enforcing his claims under these two chitty hypothecation bonds. He obtained a decree, and the judgment in the suit is evidenced by Ext. P-8 and the decree is evidenced by Ext. P-7 dated 19-5-1952.
3. It will be seen that under the Travancore-Cochin Civil Procedure Code, which was then in force, a composite decree itself, directing the mortgagor to pay the amount, us well as giving a right to the mortgagee decree-holder to apply for sale, can be passed. (Vide Order 34, Rule 3). In O. S. 194/1125 the decree itself was passed by the Munsif's Court, Alleppey, on 1.9-5-1952. But it will be seen that the said decree and judgment passed by the Munsif's Court are certainly not in strict conformity with the provisions contained in Order 34, Rule 3 of the Travancore-Cochin Civil Procedure Code, nor in conformity with Form No. 6 provided for in Appendix D to the Code.
4. It is seen that the plaintiff attempted to execute the decree, by filing an execution petition. But objection was taken that the execution petition was barred by limitation. The executing Court over-ruled the objection. And there is no controversy that the appellate Court took a different view and held that the execution petition was barred; & the result was that the plaintiff decree-holder could not take any further proceedings to execute the decree in O. S. 194 of 1125.
5. Before I proceed to consider the circumstances under which the present suit was instituted, it is necessary to note about the directions given in Ext. P-8, the judgment in O. S. 194 of 1125. In that judgment, the Court has given a direction to the effect that the plaintiff is given a decree subject to certain attachments in other proceedings; and the decree was for Rs. 520 and interest thereon at 12% from 15-7-1124 till date of suit, and the decree was passed as against defendants 1 to 3. There is also a direction to the effect that the decree will also be as against the plaint schedule properties comprised in the suit, and there was further direction for recovery of certain other amounts as against the defendants. But it is seen that no further directions were given in the judgment, nor in the decree that was framed, enabling the decree-holder to file an application for passing of the final decree for sale, though both the judgment and the decree contained a direction giving time to deposit the money, in two months. Therefore, neither the decree nor the judgment was in strict conformity with the provisions contained in Order 34. Rule 3 of the Tranvancore Cochin Code.
6. The present suit, namely O. S. No. 192/ 1958 on the file of the Munsif's Court, Alleppey, was filed by the plaintiff, on the ground that some of the persons who have got interest in the properties by way of encumbrances were not impleaded as parties to O. S. 194/1125, and therefore, he instituted the present suit for enforcing his claim under Exts. P-4 and P-5. Objection was taken to the maintainability of the suit on the ground that the plaintiff had originally filed a suit, viz., O. S. 104/1125, and had even taken proceedings for executing the decree in the said suit and had failed, and therefore, the present suit, is not maintainable.
7. The trial Court is of the view that the plaintiff having originally instituted a suit for recovery of the mortgage money and for sale, and also having attempted to execute the decree in that suit without any success, is not entitled to bring a fresh suit for the same reliefs. Evidently the view of the trial Court--though it is not expressed in so many words--is that the second suit on the same cause of action is barred by the principle of res judicata, as provided in Section 11 C. P. C. Ultimately the trial Court dismissed the plaintiff's suit. Though there were other issues also framed for trial in the suit, the trial Court did not think it necessary to go into those issues, because it had come to the conclusion that the suit was barred by limitation.
8. The dismissal of the suit by the trial Court was challenged in appeal before the learned Subordinate Judge of Alleppey in A. S. No. 485/1962. Though the plaintiff's claim in the plaint was that the present suit has been Instituted in view of the fact that the prior suit O. S. 194/1125 was instituted without all the persons who have got interest in the properties being impleaded, nevertheless it is seen that before the learned Subordinate judge the contention that was taken on behalf of the plaintiff appellant was that the second suit is not barred by limitation. The further contention that was taken was that the present suit, having been instituted within 12 years of the dates of execution of Exts. P-4 and P-5, is not barred by limitation either. No doubt this claim made on behalf of the plaintiff appellant appears to have been challenged by the defendants respondents and that aspect has been elaborately gone into by the learned Subordinate Judge. In that connection the learned Subordinate Judge refers to the provisions contained in Sections 60 and 67 of the Transfer of Property Act, as well as the provisions contained in Order 34, C. P. C., particularly Rules 4 and 5 thereof.
Order 34 of the Travancore-Cochin Code did not contemplate two distinct stages, namely the passing of a preliminary decree, and also the passing of a final decree in case of default. No doubt the view of the learned Subordinate Judge appears to be that in the manner in which the decree Ext. P-7 was passed in O. S. 194/1125, it must be considered to be only in the nature of a preliminary decree, and therefore, there is no question of bar attaching to the institution of the present suit. The learned Judge has also considered the question as to whether a second suit by the mortgagee for sale is maintainable. It is in that context that the learned Judge adverts to the provisions of Sections 60 and 67 of the Transfer of Property Act as well as the decision of the Privy Council reported in Raghunath Singh v. Mt. Hansraj, AIR 1934 PC 205. The learned Subordinate Judge takes note of the fact that the Privy Council has categorically held in that decision that so long as the claim is not barred by limitation a second suit for redemption will be maintainable. And, if the second suit is so maintainable, the view of the learned Subordinate Judge, after reference to the Division Bench judgment of Rajamannar, C. J., and Venkatararna Ajyar, J., (as he then was) in the decision reported in Ammenumma v. Beeviamma AIR 1953 Mad 32, is that a second suit for sale is also not barred under Section 11 of the Code of Civil Procedure.
In particular, the Madras decision had directly to deal with the question as to whether a second suit by the mortgagee to enforce his mortgage and ask for sale of property is barred by limitation, especially when he had instituted a prior suit for the same reliefs, and having obtained a preliminary decree did not take any steps for getting a final decree passed in the suit. After referring to these decisions, the learned Subordinate Judge ultimately came to the conclusion that the second suit in this case cannot be considered to be barred under Section 11, C. P. C., because, as laid down in the decisions referred to by the learned Judge, the provisions of Sections 60 and 67 of the Transfer of Property Act are not controlled by the provisions of Section 11 of the Code of Civil Procedure, Therefore, ultimately the learned subordinate Judge is of the view that the finding of the trial Court that the present suit is barred cannot be accepted. And holding that the suit is maintainable, the learned Subordinate Judge set aside the decree of the trial Court dismissing the suit, and remanded the suit for fresh consideration of the other issues raised in the suit.
9. As I have already indicated, the trial Court did not express any opinion on the various issues which had been raised for consideration in the suit, because on the main issue relating to maintainability of the suit it had held against the plaintiff. The order of remand passed by the learned Subordinate Judge is attacked in this Civil Miscellaneous Appeal by Mr. P. G. Parameswara Panicker, on behalf of the 2nd defendant appellant. The learned counsel no doubt urged that the view of the learned Subordinate Judge that the decree Ext. P-7 in O. S. J94/1125 must be considered to be a preliminary decree and therefore, there is no question of the present suit being barred is erroneous. According to the learned counsel, though there may have been a lacuna in the manner in which the decree and judgment in the prior suit had been passed, and though they may not be in strict conformity with the provisions of Order 34, Rule 3 of the Travancore Cochin Civil Procedure Code, which was then in force, nevertheless the learned counsel points out that the plaintiff himself understood that he is entitled to execute the decree, and in fact he filed an execution petition; and ultimately the trial Court has held that the execution petition is barred by limitation. Therefore, according to the learned counsel, when once the plaintiff had instituted the suit O. S. 194/1125 to enforce his claim under Exts. P-4 and P-5 and had obtained a decree--though a defective one--and also attempted to execute the said decree and failed, the relationship of mortgagor and mortgagee must be considered to have come to an end, and therefore, the view of the lower appellate Court that the decree Ext. P-7 must be considered to be a preliminary decree, is absolutely erroneous.
The learned counsel urged that even considering the question from the point of view as to whether the second suit is maintainable, ignoring the institution of the previous suit altogether, the view of the lower appellate Court that the present suit is maintainable is not correct. The learned counsel again stressed that the previous proceedings have put an end to the relationship of mortgagor and mortgagee, and the mortgagee is not entitled to institute a second suit on the basis of Exts. P-4 and P-5 asking for reliefs which were originally granted to him under the decree Ext. P-7 which he could not execute for some reason or other. The learned counsel no doubt attempted to distinguish the reasoning contained in the decision of the Madras High Court referred to earlier, namely, AIR 1953 Mad 32. On all these grounds the learned counsel pointed out that the view expressed by the lower appellate Court that the present suit is maintainable, is erroneous. That is, in consequence, according to the learned counsel there was no necessity to remand the suit, and the lower appellate Court should have only confirmed the decree of dismissal of the suit by the trial Court,
10. Mr. N. K. Varkey, learned counsel for the respondent plaintiff pointed out that the original decree Ext. P-7 passed by the Court in O. S. 194/1125 cannot certainly be considered to be a decree as contemplated by Order 34, Rule 5 of the Travancore-Cochin Code as well as the Form prescribed for such decree in the Code. According to the learned counsel, though the present Civil Procedure Code deals with two stages, namely passing of a preliminary decree, followed by the passing of a final decree, the Travancore-Cochin Code contemplated only a composite decree being passed. A perusal of the decree Ext. P-7 will clearly show, according to the learned counsel, that it is not a decree in accordance with the provisions of Order 34, Rule 3 of the Travancore-Cochin Code. Therefore, the learned counsel pointed out that the lower appellate Court was perfectly justified in proceeding on the basis that Ext. P-7 is only in the nature of a preliminary decree. But I do not think it necessary to go into that aspect in these proceedings. But one thing is clear, namely that the decree as passed in O. S. 194/1125 evidenced by Ext. P-7, and also the judgment Ext. P-8 on which it is based, are both not in accordance with the provisions contained in Order 34. Rule 3 of the Travancore-Cochin Code, which was in force at the material time, and the form prescribed for passing of such decrees. For the purposes of this appeal the nature of the decree passed in Ext. P-7 need not be adjudicated upon, because I will proceed on the basis that the mortgagee instituted the suit O. S. 194/1125 for enforcing his claims, under Exts. P-4 and P-5 and obtained a decree and did not take any steps for executing the same.
11. Then the question will be whether the mortgagee is entitled to institute the present suit asking for the same reliefs that he had asked for in the earliest suit. No doubt in the present suit the plaintiff has stated that the present suit was instituted because in the previous suit certain persons who have got interest in the properties could not be impleaded as parties. In my opinion, it is a peurile explanation to be accepted. But the major and important question that arises for consideration is whether the second suit by the mortgagee for enforcing his mortgage, or, in other words, the second suit for sale, is maintainable by the plaintiff in the present case.
12. So far as the right of the mortgagor to institute successive suits for redemption, so long as the claim is not barred by limitation, is concerned, the position is now fairly well settled by the decision of the Privy Council reported in ILR 56 All 561: AIR 1934 PC 205, as well as by the decision of the Federal Court reported in Subba Rao v. Mattappalli Raju, (1950) 1 Mad LJ 752: (AIR 1950 FC 1) that it is open to the mortgagor on whom the right of redemption is conferred by Section 60 of the Transfer of Property Act, to file successive suits for redemption, unless a decree for sale has been passed on his claim has become barred by limitation. These aspects have been rather elaborately considered by Rajamannar C. J., and Venkatarama Aiyar, J. (as he then was), in the decision reported in AIR 1953 Mad 32.
In fact in that decision the question directly arose as to whether those principles will apply to a second suit instituted by the mortgagee himself for sale. In that case it will be seen that the mortgagee had originally instituted a suit for enforcing his mortgage. It is also seen that a preliminary decree was passed by the Court. But inasmuch as the amount was not paid or deposited by the defendant, against whom the decree had been passed, the plaintiff mortgagee filed an application for passing of a final decree for sale. But inasmuch as he did not take any steps for issuing notice to the defendant in that action, the application filed by him for the passing of a final decree was dismissed; and a further application to review the order of dismissal was also dismissed by the trial Court. Later on the plaintiff instituted a fresh suit for enforcing the same charge in respect of which he had originally obtained a preliminary decree in previous proceedings. Objection was taken that the second suit is barred. Apart from the various other objections that were taken, there was one objection taken by the defendant that the second suit is not maintainable and is barred under Section 11, C. P. C. This aspect has been very elaborately considered by Venkatarama Iyer, J., speaking for the Court. After reference to the various provisions in the Code of Civil Procedure, as well as in the Transfer of Property Act, particularly Section 67 thereof which related to a suit for recovery of mortgage money to be instituted by the mortgagee, the learned Judge ultimately holds that principles which have been held applicable to successive suits instituted by the mortgagor, will also apply to suits instituted by the mortgagee, so long as the two conditions in Section 67 of the Transfer of Property Act have not happened, namely (a) redemption, and (b) the mortgage money has been paid or deposited as provided in the statute. If these two contingencies do not happen, the learned Judge ultimately held, the relationship of mortgagor and mortgagee still continues, and it is open to the mortgagee also to institute a second suit for recovery of the mortgage money and ask for sale of the property, notwithstanding the fact that on a prior occasion he had instituted a suit for the identical relief but did not pursue the remedy thereafter. But one limitation--apart from the limitations in Section 67 of the Transfer of Property Act itself--is that the second suit on the date when it is instituted should not be barred by limitation.
No doubt, the learned counsel for the appellant in the present case, attempted to urge, as already indicated, that the facts which the learned Judges of the Madras High Court had to deal with in the decision referred to above, are entirely different from the facts of the present case. But so far as I could see, there is no difference at all between the claim that the learned Judges had to consider in that case with the claim that this Court is now concerned with, Ultimately the learned Judges in that case held that the second suit instituted by the mortgagee was perfectly maintainable. It will also be seen that a similar view has been taken by the Orissa High Court in the decision reported in Somanath v. Sanno, AIR 1959 Orissa 122, wherein it has been held that unless there is an order for foreclosure or a decree for sale, the mortgage would in the eye of law subsist.
13. I am in respectful agreement with the principles laid down by the Madras High Court in the decision in AIR 1953 Mad 32. If that is so, it follows that the present suit instituted by the respondent plaintiff for recovery of the mortgage money and for sale of the mortgage property is perfectly maintainable, and the view expressed by the learned Subordinate Judge to that effect has to be accepted.
14. In the result the decree of the lowerappellate Court holding that the suit is maintainable will stand, and the order of remand wasperfectly justified, because an adjudication hasto be made by the trial Court on the other issuesthat have been set for decision in the suit. Theappeal fails and is dismissed. There will be noorder as to costs.