Charles Arnold White, C.J.
1. The question which has been referred in this case is whether, notwithstanding the institution, of a suit and the passing of a decree for redemption, a subsequent suit for redemption of the same mortgage can be brought when the decree in the former suit lifts not been executed. I take it that for the purposes of this reference the words 'when the decree in the former suit has not been executed' mean when the order provided for by Section 93 of the Transfer of Property Act for foreclosing the right to redeem, or for sale, as the case may be, has not been made.
2. The view which has been generally adopted by this High Court, though the decisions are not altogether uniform, is that a second suit will lie. The Bombay and Allahabad High Court have held otherwise.
3. The answer to the question appears to me to depend not upon whether or not at the time of the bringing of the second suit the relation of mortgagor and mortgagee subsists between the parties, but upon whether, assuming that the right subsists, the mortgagor is precluded, by the operation of the doctrine of res judicata by reason of the adjudication which lie has already obtained, from bringing a second suit.
4. On the construction of Sections 92 and 93 of the Transfer of Property Act, it is perfectly clear that the equity of redemption remains unforeclosed and the relation of mortgagor and mortgagee continues until the order absolute which is contemplated by Section 93 is made. Section 92 requires the Court if the plaintiff succeeds (i.e., if the plaintiff establishes that he is entitled to the decree which by Section 92 the Court is empowered to make) to order that, ii the plaintiff pays in pursuance of the order of the Court, certain things shall be done, and that if he does not pay, certain legal consequences shall ensue. Section 93 provides that, if: payment in pursuance of the order of the Court has not been made, the defendant may apply, and the Court shall order, that the mortgaged property be sold or the plaintiff's right to redeem be foreclosed, as the case may be and the section expressly enacts that on the making of an order under the section the right to redeem and the security shall both be extinguished. If the right to redeem is only extinguished when an order is made under Section 93, it follows that the right is a subsisting right until the order is made. It does not, however, follow that the right is enforceable by means of a second redemption suit. It seems to me that though the right subsists, the remedy is barred by Section operation of the rule of law which is embodied in 92 of the Code of Civil Procedure. The legislature has laid down what is the matter in issue in a redemption suit. In order to succeed, the mortgagor has to show that he is entitled to a decree ordering that if he pays off the mortgage debt in pursuance, of the order of the Court, the mortgagee shall, re-transfer the property and if necessary, put him in possession?. The matter in issue is-aye or (sic)-is the mortgagor entitled, to the decree which, if lie succeeds, the Court is required by Section 92 to make? The question whether a decree under Section 92 operates as res judicata as a final adjudication on the matter in issue between the same parties is, as it seems to me, entirely different from the question whether such a decree is in itself capable of execution without the order absolute which is contemplated by Section 93 having been made.
5. As regards the authorities, the view which has usually prevailed in this Presidency, as already observed, has been that a second suit will lie.
6. In the cases reported in Sami Achari v. Somasundara Acari I.L.R. 6 M. 119; Periandi v. Angaypa I.L.R. 7 M. 423 and Karuthasami v. Jagannatha I.L.R. 8 M. 478where it was held that a second suit would lie, the decree in the first suit contained no direction that in default of payment by the mortgagor the equity of redemption should be foreclosed. In the case in which the present reference has been made the decree directed (the mortgage being a usufructuary mortgage) that if the mortgagor failed to pay in pursuance of the order of the Court property should bf sold. Possibly the present case may be distinguished from the earlier authorities upon this ground, but it seems to me that so far as the question of res judicata is concerned, it is immaterial whether or not the decree in the first suit directs that if the mortgagor does not pay as ordered by the Court the equity of redemption should be foreclosed or the property should be sold. The basis of the decision in Periandi v. Angappa I.L.R. 7 M. 423 and in the later Madras cases in which the same view was adopted, was that at the time the second suit was brought the relation of mortgagor'and mortgagee still subsisted. But, as 1 have said the question is not what are the rights of mortgagor, but what, in the events which have happened, is the legal remedy which is open to him to enforce these rights. In Ramunni v. Brahma Dattan I.L.R. 15 M. 366 the question again came up for consideration and was fully discussed by Sir Muttusami Aiyar J., and Mr. Justice Best, who re-affirmed the view adopted in the earlier Madras cases and dissented from that of the Bombay High Court in Gan Saxant Bal Savant v. Narayan Dhond Savant I.L.R. 7 B. 467. Sir Muttusami Aiyar observes that the Madras decisions are more consistent with the scheme of the Transfer of Property Act, while the Bombay decisions introduce the doc- ' trine of constructive foreclosure founded on the plea of res Judicata. This observation appears to have been made with reference to the Bombay decision reported in Malaji v. Sahgoji I.L.R. 13 B. 567. I agree that any doctrine of constructive foreclosure is foreign to the scheme of the Transfer of Property Act. (As a matter of fact the Transfer of Property Act did not apply in Bombay at the lime these two cases were decided). As regards the earlier Bombay case to which 1 have referred, the judgment of Sir Raymond, West is not based on any such technical ground but on the general principles of the law of res judicata. The precise point came before a Division Bench in Ramasami v. Sami I.L.R. 17 M. 96 where it was held that a second suit for redemption would not lie. I agree with the conclusion at which the Court arrived, but with all respect to the learned judges who decided that ease, it seems to me that the matter was res judicata, not because the decree under Section 92 became final at the expiry of the time fixed for payment thereby, although no order had been made under Section 93, but because the matter in issue became res judicata as between the parties from the time the mortgagor's right to redeem was adjudicated, on by a decree made under Section 92. In the Full Bench case, Vallabha Valia Rajah v. Vadapuratti I.L.R. 19 M. 40 the question referred was whether, after the expiration o[ the time mentioned in the decree and before any order for sale, the Mortgagor is precluded from redeeming the property. The actual point decided was that after the expiration of the time mentioned in the decree and before any order for sale, it was not open to the plaintiff to apply for execution of the decree. The question now before us was only dealt with incidentally in that case, and the decision cannot be put higher than that the learned judges dealt with the case before them upon the assumption that a second suit will lie, and that the earlier Madras case, assuming them to be good law, show that the mortgagor who .has allowed the time fixed for payment to expire, is not without a remedy. It is to be observed that in the case which came before the Full Bench there had been no formal application for au extension of time, and the question whether there is power to extend the time on the application of the mortgagor after the expiry of the time fixed, and without any application foe sale or foreclosure being made by the mortgagee, appears to be still open so far as the decisions of this High Court are concerned. In Bombay it has been expressly held that under the proviso to Section 93 of the Act, an application to extend the time for redemption fixed by the original decree may be made at any time before the order absolute is made I.L.R. 22 B. 71. In the case reported in Nainappa Chetty v. Chidambaram Chetty I.L.R. 21 M. 18 a Division Bench again adopted the view which has usually prevailed in this Court and held that, inasmuch as the relation of mortgagor and mortgagee had not been put an end to, a second suit would Ho. The learned judges, how-over, were of opinion that though the right of the mortgagor for a decree under Section 92 was Mot res judicata, the findings in the previous suit as to the amount of the debt and the extent to which it bound the estate were res judicata. With all deference it; seems to me that for the purpose of the question of res judicata, it is difficult to make a valid distinction between the findings of fact as to the conditions upon which the mortgagor is entitled to redeem and the adjudication in law that the mortgagor is entitled to redeem on complying with certain prescribed conditions.
7. As regards the Bombay authorities I have already referred to Gan Savant Bal Savant v. Narayan Dhond Savant I.L.R. 7 B. 467 and Malaji v. Sagoji I.L.R. 13 B. 567. As regards the latter case, it is not necessary to express an opinion as to whether, in so far as the decision goes beyond the point now before us, the ease was rightly decided.
8. As regards the Allahabad High Court, the question was considered by Sir John Edge and Mr. Justice Blair in David Hay v. Razi-ud-din I.L.R. 19 A. 202 and by Sir Arthur Strachey and Mr. Justice Knoxin Dudh Bahadur Rai v. Teh Narain Rai I.L.R. 21 A. 251. In the former ease the learned judges expressed the view that a second suit was precluded by Section 13 of the Civil Procedure Code.
9. In the latter ease it was hold that the dismissal of a suit for redemption on the ground that the mortgagor had not prior to its institution paid or tendered the mortgage money at a time authorized by the deed, did not operate as foreclosure or res judicata so as to bar a second suit. It seems to me that this case may be distinguished on the short ground, that the cause of action in the second suit was different from that in the first. Prior to the institution of the first suit tender as authorised by the deed had not been made. Prior to the institution of the second suit such tender had been made. Further, in the Allahabad case the mortgagor's suit had been dismissed, whilst in the present case the mortgagors obtained the decree for which lie sued. It may well be that the English rule that a suit for the redemption of a legal mortgage which is dismissed for any reason except want of prosecution operates as a decree for foreclosure see Marshall v. Shrewsbury L.R. 10 Ch. 250 has no place in the Indian law of mortgage. It' it, has not, the equity of redemption in such a case would remain unforcclosed, but, it does not follow that a mortgagor who has brought his suit and failed can seek the aid of the Court by another suit for the purpose of enforcing his right. Still less does it follow when the mortgagor has brought his suit and obtained an adjudication for foreclosure on payment, that a second suit is maintainable. As pointed out by Sir Arthur Strachey, the incidents of a Welsh mortgage closely resemble those of a usufructuary mortgage under the Transfer of Property Act, and the learned judge himself suggests that the decision in Curtis v. Holecombe 34 R.R. 305 (where the mortgagor filed a bill for the redemption of a Welsh mortgage and obtained a decree) might lie analogous to a case where, as here, the plaintiff obtained the decree for which lie asked, though it was not analogous to the case before the Allahabad High Court whore the plaintiff failed to obtain a decree. Moreover, Sir Arthur Strachey expressly distinguishes tin; earlier. Allahabad decision Hay v. Razi-ud-din I.L.R. 19 A. 202 upon the ground that in that case there was a prior decree for redemption. He observes, 'It is sufficient to say that, in our opinion, the principle of Hay v. Razi-ud-din I.L.R. 19 A. 202 should not be extended to a case where no decree for redemption has been passed prior to the suit before the Court.'
10. As regards the Calcutta High Court, the only two decisions to which our attention has been called which bear upon the point Siva Pershad Maity v. Nundo Lall Kar Mahapatra I.L.R. 18 C. 139 and Roy Dinkur Doyal v. Sheo Golam Singh 22 W.R. 172 appear to be in conflict.
11. For the reasons which I have stated, I think the answer to the question which has been submitted to us should be in the negative.
12. The question is whether a mortgagor who has once obtained a decree for redemption can, under any circumstances, bring a second suit for the same relief. The solution of the question seems to mo to lie in a nutshell. If the decree the mortgagor has obtained is a final decree as the majority of this Court has held in the reference to the Full Bench in A.A.O. No. 156 of 1900 Since reported-Vide Mattikarjunadu Setti v. Lingamurti Pantutu I.L.R. 5 M. 244 a second suit must undoubtedly be barred as res judicata under Section 13 of the Code of Civil Procedure. If, as the minority of this Court has held in the same reference, the decree the mortgagor; has obtained is only a preliminary decree, then the suit is still pending and a second suit is debarred under suction 12 of the Code. On these grounds alone 1 would decide that no second suit is sustainable.
13. The particular reason for the opinion that a second suit for the redemption of a mortgage is admissible apparently is that the right to redeem subsists apart from the decree for the whole period of sixty years during which a suit or suits for redemption may be brought. But if that argument were sound any other right, for instance, the right to recover a debt, would also subsist until the period of limitation for bringing a suit to enforce it had elapsed. There seems to ho no difference between the cases. I am not aware of any special sanctity about a right to redeem which places it on a higher footing than any other legal right in respect to the enforcement of it by a suit. In my opinion, they are all subject to the same procession law, namely, that once any right, has been enforced by a suit in which a decree has been obtained, the decree becomes the embodiment of that right, and that right in its inchoate state is merged in the decree. If a second suit is allowable in any case, it must 1)0 allowable in all cases, and there is no reason why if a second suit is allowed there should not be a third, a fourth or a fiftieth suit on the same cause of action so long as the cause of action remained unbarred by limitation, hi the case of a right to redeem, such suits might be brought for 60 years from the date of the mortgage, and if in any suit so brought the mortgage was acknowledged, as it could hardly fail to be, a fresh starting point for the sixty years' limitation would begin from the date of such acknowledgment, and the right to sue would thereby become in practice everlasting. 1 consider that this reduction ad absurdum conclusively shows that no second or further suit lies in a case where there has once been a suit for redemption and a decree whether preliminary or final has been obtained therein.
14. My answer to the reference would therefore be emphatically in the negative.
Bhashyam Aiyangar, J.
15. The circumstances which have led to the institution by the 1st respondent of this second suit for redeeming the mortgage of 1858 for the redemption of which identical mortgage he had already obtained a decree in O.S. No. 3 of 1889 will be found fully set forth in the case reported in I.L.R. 19 M. 40. The mortgage being a usufructuary mortgage, the decree in O.S. No. 3 of 1889 did not provide for foreclosure of plaintiff's right to redeem in default of payment within the time fixed in the decree for redemption, but only provided for sale of the mortgaged property (vide last paragraph of Section 92, Transfer of Property Act). It does not appear that plaintiff ever applied under the proviso to Section 93 for extending the time fixed for payment; but without obtaining any such extension he unsuccessfully attempted to redeem and recover possession of the mortgaged property by payment into Court after the day appointed. In Vallabha Valla Rajah v. Vedapuratti I.L.R. 19 M. 40 it was assumed, following the opinion expressed in the decision of this Court, in Elayadath v. Krishna I.L.R. 13 M. 267 and Kanara Kurup V. Govinda Kurup I.L.R. 16 M. 214 that the proviso was only intended to come into play when an application has been made by the mortgagee--the defendant--for the final order for foreclosure or sale, to which lie may lie entitled under paragraph 2 of Section 98 (Transfer of Property Act). Such assumption is possibly due to the circumstance that the proviso has been inserted in Sections 87 and 98 and not in 88 and 92. The recession for not inserting it in Sections 86 and 92 which relate to the passing of decrees in foreclosure and redemption suits respectively, seems to me to be obvious. If it was so inserted, the order postponing the day fixed for payment will be one for amendment of decree and will have to be passed by the Court which gassed the decree, either in the first instance or on appeal confirming, varying or reversing the original decree, whereas by inserting the proviso in Sections 87 and 93, the order postponing the date of payment will operate as an order passed in execution proceedings relating to the stay of execution of the decree within the meaning of Section 244, Clause (c) of the Civil Procedure Code Hulas Rai v. Pirthi Singh I.L.R. 14 A. 502; Rahima v. Nepal Rai I.L.R. 14 A. 520 and can be passed by the Court executing the decree, though such Court may be different from the one which passed the decree. Though in regard to the execution of a decree the initiative will have to be taken by the, party entitled to execute the decree, yet in regard to the stay of its execution, the party against whom it maybe executed may take the initiative and apply for and obtain stay of execution in anticipation or apply for such stay when motion is made for execution of the decree. Under the English law, as pointed out by Shephard, J. in I.L.R. 19 M.40 the time for payment may be extended either on the independent motion of the mortgagor--the plaintiff--or on the hearing of an application by the mortgagee - the defendant - to make the foreclosure absolute Alden v. Foster 5 Beav 592 ; Jones v. Creswicke 9 Sim 307 and I entirely fail to see anything in the language of Sections 87 and 93 of the Transfer of Property Act, to show that the salutary English practice was intended to be departed from and that the proviso for, extension of the time fixed for payment cannot be availed of by the mortgagor unless and until an application is made by the mortgagee for an order for foreclosure absolute or for sale, an application which, in the nature of things, can be made only after the period fixed for redemption has expired. I can conceive of no intelligible reason for imputing such intention to the Indian Legislature. As observed in my judgment in A.A.O. No. 156 of 1900 (written some days ago and before this reference came on for hearing though pronounced only to-day), the use of the word ' postpone' in the proviso to Sections 87 and 98 of the Transfer of Property Act, clearly indicates that, as a general rule, the application for extension of the time fixed for payment is assumed to be made before the day fixed for payment and therefore, by the mortgagor, before the mortgagee applies for an order absolute for foreclosure or sale. In the present case, the mortgagee not having chosen to apply--evidently because he was in possession and the time fixed for redemption had expired--under paragraph 2 of Section 98 for an order that the mortgaged property be sold, it was assumed that the mortgagor could apply for no extension of time and it was pointed out I.L.R. 19 M. 40 that if the law as laid down in the previous decisions of this Court I.L.R 6 M. 119 was good law, he was not without remedy and could bring a second suit for redemption. The possibility of the mortgagor--the plaintiff--himself applying for an order for sale of the mortgaged property in pursuance of the decree which directed sale of the property in default of payment within the time fixed was not considered. In a suit for foreclosure, the mortgagor--the defendant--may under paragraph 2 of Section 88, apply for and obtain a decree for sale in lieu of foreclosure, though under Section 67 (Transfer of Property Act) the mortgagor, as plaintiff, could bring no suit for sale, as he could in England under Section 25 of the Conveyancing and Law of Property Act, 1881. Notwithstanding that Section 93 (Transfer of Property Act) deals only with a mortgagee's application for an order for sale, it would on principle seem that there could be no objection to the mortgagor applying for execution of the decree passed under Section 92 and obtaining an order for sale of the mortgaged .property, the sale of which has been decreed under the last paragraph of Section 92 in case payment is not made on or before the day fixed in the decree for redemption.
16. Turning now to the general question referred to the Full Bench - apart from the special facts of the case in which the question has arisen, I am clearly of opinion that the present suit for redemption of the very same mortgage, for the redemption of which a decree had already been obtained in O.S. No. 3 of 1889 is barred as res judicata by Section 13, Civil Procedure Code, and is also barred by Section 244, Civil Procedure Code, notwithstanding that 7io order absolute for sale has been passed in the former suit.
17. In Kameswar Pershad v. Rajkumnri Ruttan Koer I.L.R. 20 C. 79 the Judicial Committee of the Privy Council, adverting to Section 13, Civil Procedure Code, held that neither the Procedure Code of 1877 nor that of 1882 introduced any new law, but only put into the form of a Code that which was the state of the law at the time, and that the state of the law at the time was that persons should not be harassed by continuous litigation about the same subject-matter. Though the wording of Section 13, Civil Procedure Code, is not as felicitous as one might wish, it virtually reproduces the firmly established law of res judicata, viz., that a final decision by a Court of competent jurisdiction of a matter directly and substantially at issue between certain contending parties, shall as a plea be a bar and as evidence be conclusive in any subsequent suit between the same parties. Explanation IV to the section makes it clear that interlocutory orders or decisions, or preliminary decrees, if there be any such under the Indian law, are not final decisions,' within the meaning of the section, having the force of res judicata.
18. In addition to the cases of Ex parte Chinery 12Q. B.D.345 and Smith v. Davies 31 Ch. D. 595 which I cited in my judgment in A.A.O. No. 156 of 1900 I.L.R. 25 M. 244 as explaining what a final judgment in law strictly is as distinguished from an 'order,' I may refer to Daniel's Chancery Practice (6th edition), page 788, in which it is laid down that 'where a judgment does not adjourn the consideration of the cause, it is said to be a final judgment and to the following extract from the judgment delivered by Story, J., in Whiting v. Bank of the United States, (decisions of the Supreme Court, United States, America, 18 Peters at p. 15): - 'That depends upon this; whether the decree of foreclosure and sale is to be considered is the filial decree in the sense of a Court of exiguity and the proceedings on that decree a, mere mode of enforcing the rights of the creditor and for the benefit of the debtor or whether the decree is to be deemed final only after the return and confirmation of the sale by a decretal order of the Court. We are of opinion that the former is the true view of the matter. The original decree of foreclosure and sale was final upon the merits of the controversy. The defendants had a right to appeal from that decree, as final upon those merits, as soon, as it was pronounced in order to prevent an irreparable mischief to themselves I Will the sale had been completed under the decree the title o!' the purchaser tinder the decree would not have been over thrown or invalidated even by a reversal of the decree and consequently, the title of the defendants to the lands would have been extinguished; and their redress upon the reversal would have been of a different sort from that of a restitution of the land sold. In Ray v. Law, 3 Canch 179, it was held by this Court, that a. decree for sale of mortgaged premise was a final, decree in the sense of the Act of Congress upon which an appeal would lie to the Supreme Court. This decision must have been made on the general ground that a decree final upon the merits of the controversy between the parties is a decree upon which a bill of review would lie without and independent of any ulterior proceedings. Indeed, the ulterior proceedings arc but a mode of executing the original decree like the award of an execution at law.' It is therefore abundantly clear that a decree for redemption passed under Section 92 (Transfer of Property Act) is a, final judgment or decision within the meaning of Section. 13, Civil Procedure Code, and falls within the first part of the definition of 'decree' in the Civil Procedure Code. Until the suit reaches that stage, it can, under Section 873, Civil Procedure Code, be withdrawn with liberty to bring a fresh suit or under Section 375 be adjusted by any lawful agreement or compromise in accordance with which a decree may be passed so far as it relates to the suit and issues may be amended or additional issues framed under Section 149, Civil Procedure Code. Though in one sense, the suit is pending Satt v. Cooper 16 Ch. D. 51 Collinson v. Jeffery (1896) 1 Ch. 646 until the decree or judgment is worked out and satisfied, and proceedings in execution thereof are 'proceedings in suits' (explanation to Section 647, Civil Procedure Code), yet after the decree (vide Section 375 A, Civil Procedure Code) the suit cannot, unless the same be carried and is pending in appeal, be withdrawn with liberty to bring a fresh suit nor superseded or varied by a compromise or adjustment except in one or two particulars (Section 206, Civil Procedure Code). L presume that no one will seriously contend that a suit for foreclosure, sale or redemption can be withdrawn with liberty to sue again, after decree has been passed under Sections 86, 88 or 92 (Transfer of Property Act).
19. In I.L.R. 21 M. 18 while holding that a second suit for redemption was maintainable in accordance with certain previous decisions of this Court, the decree in the first suit passed under Section 92 (Transfer of Property Act) was held to be a final judgment operating as res judicata as to the relation between the parties, of mortgagor and mortgagee in respect of the subject-matter of the suit and also as to the amount due for redemption at the date of the former decree. I should fully concur in the decision of this Court in I.L.R. 21 M. 18 holding that in that wise a subsequent suit for redemption was maintainable, if the decree in the former suit had been--as in fact it was not--a mere declaratory decree, not capable of execution, establishing the relation of mortgagor and mortgagee and the state of the account between the mortgagor and mortgagee at the date of the said decree, assuming that such a decree could have been passed.
20. If the order absolute for foreclosure or sale under Section 93 is alone to be regarded as the final judgment or decision in the suit, that alone can operate as res judicata and the decree passed under Section 92 will have to be regarded simply as an interlocutory order or proceeding which cannot have the force of res judicata. If this be the right view and if no order for absolute foreclosure or sale be passed, the suit will have to be regarded as still pending, and Section 12, Civil Procedure Code, will operate as a bar to the trial of a second suit for the same relief between the same parties.
21. In Lockyer v. Eerryman 2 A.C. 519 on the authority of which it was held by the High Court of Bombay I.L.R. 7 B. 467 that a decree for redemption, mi default, of the decree-holder to pay the money within the time fixed in the decree, or if none be fixed, within the time nil owed by law for execution of the decree, operates as n judgment of foreclosure and debars the mortgagor from afterwards bringing a second suit for redeeming the same property--Lord Selborne laid down that 'when there is res judicata original cause of action is gone and can only lie restored by getting rid of t lie res judicata.' Lord Blackbrun there explained the principle of res judicata as follows: 'When a competent tribunal having had n case before, them have given a final judgment, it is rex judicata. I do not mean to express any opinion as to what 'would be a, sufficient ground to re-open the case * * * *. The object of the rule of res judicata is always put upon two grounds--the one, public policy, that is the interest of the Stale that there should be an end of litigation, and the other, the hardship on the individual that he should be vexed twice for the same cause.' Again, Lord Penzance, in his judgment in Kendall v. Hamilton 4 A.C. 504 says, 'when that which was originally only a right of action has been advanced into a judgment of a Court of record, the judgment is a bar to an action brought on the original cause of action. The reasons for this result are given by Boron Parke in King v. Huare 13 M. W. 494. He says 'The judgment is a bar to the original cause of action because it is thereby reduced to a certainty and the object of the suit attained, so far as it can be at that stage and it would be useless and vexatious to subject the defendants to another suit for the purpose of attaining the same result. Hence, the legal maxim 'Transit in res judicata the cause of action is changed into matter of record which is of higher nature and the inferior remedy is merged in the higher.'
22. The whole argument in support of the contention that a second suit, for redemption is maintainable in the absence of an order absolute for foreclosure or sale proceeds upon the supposition that in spite of the express declaration (in Section 2(a) of the Transfer of Property Act) that nothing therein contained shall be deemed to affect the provisions of any enactment not thereby expressly re-pealed, there is some magic in Sections 80 to 98 of this Transfer of Property Act and in particular in the word' 'absolute' or' absolutely' therein occurring, which overrides the fundamental principle of res judicata embodied in Section 18, Civil Procedure Code. Section 60 (Transfer of Property Act) defining the mortgagor's right to redeem specifies the actual remedies which ho is entitled to in exercising his right of redemption, the remedies, of course, being such as he would obtain in enforcement or execution of the redemption decree. Similarly, Section 67 in defining the mortgagee's right lo foreclosure or sale specifies the remedy he is entitled to in exercising such right, i.e., an order that the mortgagor shall be absolutely debarred of his right to redeem or an order that the mortgaged property be sold. Such definition of the mortgagor's right of redemption and of the mortgagee's right of foreclosure or sale was relied on in the course of argument in A.A.O. No. 156 of 1900 as leading to the conclusion that the decrees passed under Sections 86, 88 and 92 are only 'preliminary decrees' or decrees nisi, and that the 'final decrees,' capable of execution in the suits are the orders passed under Sections 87, 89 and 93, respectively. In my opinion the inference to be drawn is just the opposite. If you want to define the right which a creditor has against his debtor, you will have to say that he is entitled to be repaid the amount of the debt and not simply to a decree against his debtor for such payment. Sections 60 and 67, therefore, declare what the mortgagor or mortgagee is actually to realize by enforcing his right, the relief which he is entitled to by enforcing or executing the decree establishing his right. In the case of redemption, delivery back of the mortgage deeds, possession of the mortgaged property and a re-conveyance are the relief's (see Section 6', Transfer of Property Act) which the mortgagor obtains by executing his decree for redemption. As the provisions of the Civil Procedure Code are sufficient to work out a decree for redemption, no special provisions for the same are made in the Transfer of Property Act, except for the mortgagor being put in possession of the mortgaged property. Even this last seems superfluous (vide, Section 263, Civil Procedure Code); but, whether superfluous or not, the provision made for it in the first paragraphs of Sections 87, 89 and 93 conclusively shows that those sections relate to the enforcement or execution of the decrees passed under Sections 86, 88 and 92, and it is significant that Sections 87, 89 and. 93 do not provide for the passing of an order absolute for putting the mortgagor in possession, bat only for the executive act of putting him in possession.
23. In the case of a foreclosure decree, there is nothing in the Civil Procedure Code as to the mode of enforcing the same. The second paragraph of Sections 87 and 93 (Transfer of Property Act) provide that the same is to be enforced by obtaining an order of Court debarring the mortgagor absolutely of all right to redeem. This is the mode provided by the Transfer of Property Act, following the English Chancery Practice, for working out or executing a decree for foreclosure passed under Section 86 or 92 (of the Transfer of Property Act) as the case may be. In addition to such order, it is provided that the Court may enforce the decree, if necessary, also by delivery of possession of the property to the mortgagee (see end of the 2nd paragraph of Section 87 and of the 3rd paragraph of Section 93) though the decree itself does not in terms provide for such delivery of possession as it does in the case of delivery of possession to the mortgagor. I have already explained in my judgment in A.A.O. No. 156 of 1900, that an application made under Section 89 or 03 for an order absolute for sale is only an application for execution of the decree for sale passed under Sections 88 and 92 and. indicated the reasons for special provision being made in the Transfer of Property Act for the passing of such order for sale. Whether the decree be in a suit for foreclosure or in a suit for sale or in a suit for redemption, there is in each a conditional decree for redemption in favour of the mortgagor, the condition being the payment by the mortgagor of the amount decreed on or before the day fixed. But the Transfer of Property Act does not provide for an application being made by the mortgagor, after such payment, for an order absolute for redemption, or for the passing of any such order. This conclusively shows that the decrees passed under Sections 86, 88 and 92 are not ' preliminary decrees' or decrees nisi, which require to be perfected by being made absolute or 'Unconditional, on the fulfilment of a condition or contingency subject to which the decrees were passed. But so far as the decree one for foreclosure or sale, provision is made for the mortgagee/applying for an order absolute for foreclosure or sale as the case may be, to supplement the imperfect provisions to the Civil Procedure Code relating to the enforcement or execution of decrees. Decrees for specific performance, decrees respecting rights of casement and similar decrees are often made conditional, but the are not the less final judgments' having the force of res judicata This, I venture to slate, is equally so under the English law and nil decrees whether conditional or unconditional are to lie worked out and enforced in execution and the orders passed therefor are not to be regarded as the final judgment or decree in the suits, but only as orders relating to the execution of the decree vide R.S.C. Ord. 42 (sic) 9; Ann. Pract: 1902, p. 571.
24. In Monkhouse v. Coorporation of Bedford 17 Ves. 380 the plaintiff-the mortgagee-having obtained the usual decree for foreclosure, at the Rolls as mortgagee, and an appeal therefrom having been preferred to the House of Lords by the mortgagor, before the order for foreclosure absolute was passed, a motion was made by the mortgagor--the defendant--before the lower Court to suspend, the execution of the decree until six months after the appeal should have been heard. The lower Court m granting the application on certain terms stated as follows: 'This decree must therefore lie taken to be right to the extent of letting execution upon it, unless the Court sees that if it turns out to be wrong the party cannot 'be set right again.' It will be observed that in that' case the decree from which an appeal was preferred to the Mouse of Lords was the usual decree in an action by a. mortgagee for foreclosure or sale, corresponding to that under Cection 86 of the Transfer of Property Act and that it was treated as the final judgment in the action and as one capable of being enforced by execution pending appeal see also Funch v. Shar 20 Beav. 355. Similarly here also, pending' appeals and second appeals, from the original decree, the Court whose duty it is to execute the decree may stay execution of the same by postponing from time to time, under the proviso to Sections 87 and 93, the day fixed for payment. After the passing of the decree referred to in Sections 80, 88 and 92, the cause is not adjourned for further consideration, but an order for foreclosure absolute or for sale may, in execution of the decree, be, under the English law, obtained on application made ex parte, supported by an affidavit, by mortgagee or his attorney, of due attendance at the place appointed for payment and of non-payment of the amount certified to be due (see Ann. Practice for 1902, p. 773) and under the Indian law, on a verified application made under Sections 230 and 235, Civil Procedure Code.
25. The conclusion I have arrived at both in the references made to the Full Bench in A.A.A.O. No. 35 of 1901 and A.A.O. Nos. 48 and 156 of 1900 I.L.R. 25 M. 244 and in this case, as lo the scheme of the mortgage chapter in the Transfer of Property Act and its relation to chapter XIX of the Civil Procedure Code, is, I venture to say, not only in strict conformity with the Transfer of Property Act which in this respect is substantially the same as the English Chancery law--but also steers clear of the innumerable difficulties, as to the right of appeal, the period of limitation for applications under Sections 87, 89 and 92 the Court which is competent to pass the orders therein mentioned, the Court fees payable in respect of appeals, &c;, which will result from the position taken by the Calcutta High Court that a decree passed under Sections 86, 88 or 92 of the Transfer of Property Act is order a preliminary decree or decree nisi and that it is the order passed under Sections 87, 89 or 93 that constitutes the final decree or decree absolute. In the view that the decrees under Sections 88, 89 and 93 are the final judgments or decisions in the suit, they will lie appeasable as 'decrees' according to the first part of the deli nit ion of 'decree' in the Civil Procedure Code, and applications made under Sections 87, 80 and 93 will be governed by Article 170 of the 2nd schedule to the Limitation Act and orders thereon can be passed by the Court executing the decree and will be appeasable as orders passed under Section 244 (sic), Civil Procedure Code, comprised within I he second part, of the delimitation of 'decrees' in the Civil Procedure Code-subject according to the notification of the Government of India, to the payment of the fixed Court lee prescribed by No. 11 of Schedule 2 of the Court Fees Act.
26. The learned Counsel for the respondent contends--and this is the contention principally relied on by him--that even if the decree passed under Section 92 in the former suit be regarded as the final judgment or decision within the meaning of Section 13, Civil Procedure Code, the right to redeem still subsists, inasmuch as no order absolute for sale has been made under Section 93--which alone can extinguish that right--and that, therefore, the decree in the former suit can be no bar to the mortgagor enforcing his right of redemption in the present suit, the relation of mortgagor and mortgagee still continuing and the light of redemption being inseparable from such relation.
27. In support of this contention he relies upon the decisions of this Court, reported in I.L.R. 6 M. 119 which led to the order of reference to a Full Bench in this case, as they are in conflict with the decisions of the Bombay High Court in I.L.R. 7B. 467 and of the Allahabad High Court in I.L.R. 19 A. 263 and not reconcilable with the decision of this Court in I.L.R. 17 M. 96 if the dictum of Shephard, J., in I.L.R. 19 M. 51 that 'it would make no difference whether or not the decree pleaded in bar contained a direction for foreclosure or sale' wore sound. In the castes reported in 6, 7, 8, 15 and 21 Madras series--in all of which it was held that a second suit for redemption was maintainable--the decree in the first suit which was pleaded in bar contained no directions for foreclosure or sale in default of redemption. In the first of these cases, the decree in the first suit was left unexecuted for 15 years, but it was regarded in the events which have happened as a declaratory decree, though he was entitled under that decree to recover possession on making a certain payment and the second suit for redemption which was based on the original mortgage was held maintainable. In the second case, the execution of the decree passed in the first suit was barred by limitation, the second suit for redemption was held maintainable on the ground that the relation of mortgagor and mortgagee still subsisted and the right to redeem was inseparable from such relation so long as it existed. The same view was taken in I.L.R. 15 M. 360. These decisions were followed in I.L.R. 21 M. 18 but in all these cases the decision proceeded expressly on the ground that the decree in the first suit which was pleaded in bar contained no direction for foreclosure or sale in default of payment. But I agree with the dictum of Shephard, J., (in 19 M. at p. 51) already referred to that inasmuch as it is the order of foreclosure absolute or sale that extinguishes the right of redemption and not the mere passing of the decree with a direction, for foreclosure or sale in the event of nonpayment on or before the day fixed, it can make no difference whether the decree did or did not contain a direction for foreclosure or sale. In the present case, tin decree in the first suit did contain a direction for sale in default of payment, but for the reasons already stilted, the mortgagee, the defendant, did not choose to apply for nil order absolute for sale. This case is like that reported in I.L.R. 17 M. 97 in which it was 7held that a subsequent suit for redemption was barred by a decree for redemption in a former suit--which decree provided that in default of redemption within the time limited thereby the right of redemption was to be foreclosed--though no order for foreclosure absolute had been made under Section 93. Bat if the decisions, of this Court in the other cases are sound, (i.e., in 6, 7, 8, 15 and 21 Madras) the case in 17 Madras, and the present case cannot be logically distinguished therefrom simply on the ground that in those cases the decree in the first suit contained no direction for foreclosure or sale.
28. With all deference to the learned judges I find it impossible to adopt the reasoning on which the decisions of this Court in Section 7, Sand 15 Madras proceed and the conclusions arrived at therein. If those decisions are sound, there can be no limit to the number of successive suits for redemption of the same mortgage and the fundamental principle on which the doctrine of res judicata is founded will have to be wholly ignored. If the principle of those decisions be--as it must--that so long as the relation of mortgagor and mortgagee is nor extinguished by act of parties or by order of Court under Sections 87, 89 or 93 of the Transfer of Property Act, or by Section 28 of the Limitation Act, the right of redemption is inseparable from such relation and that, therefore, there can be no impediment to t he mortgagor's bringing a suit for redempt on although lie had already obtained a decree for redemption, it will necessarily follow that he can institute in succession as many suits as he chooses for redeeming one and the same mortgage and the mortgagee as many suits as he chooses for foreclosure or salary for the right of redemption and the mortgage security are not. extinguished until the passing of an order for foreclosure absolute or for sale. Even if the execution of the decree in the first suit be not barred by limitation there will be nothing to prevent his instituting another suit for redemption, foreclosure or sale as the case may, be. And if he can do so there will be nothing to preclude the defendant in the subsequent suit from implying, in execution of the decree in the former suit, for redemption, or for an order for foreclosure absolute or for sale as the case may be, if the execution of the decree therein be not barred by the law of limitation.
29. In considering' whether the plea of res judicata, operates as a bar to the suit, the question is not whether the alleged relation of mortgagor and mortgagee or any other legal relation between the parties to the suit subsists, but whether, assuming the same to subsist, the plaintiff is not precluded from seeking to enforce his right by reason of his having already sued upon the same cause of action and obtained an adjudication which it was competent for him to enforce and execute. If one obtains a mere declaratory decree establishing a certain right, of the nature contemplated in Section 42 of the Specific Relief Act and thereafter brings a subsequent suit to obtain a relief consequent upon such right, the decree in the former suit cannot as a plea be a bar to the subsequent suit, though as evidence it will b6 conclusive in his favour as to the right adjudicated upon therein. But a person who has obtained a decree establishing his right and entitling him to the consequential relief, cannot again sue for the same but can only work out his right and obtain the relief by executing, the decree. And Section 244, Civil Procedure Code, expressly prohibits a separate suit for the purpose.
30. Applying this principle to a mortgagor's right of redemption, we find a complete definition, of that right or cause of fiction in Section 60 of the Transfer of Property Act. The former suit in the present case was founded upon that cause of action and after a decree had been given therein under Section 92 of the Transfer of Property Act, the 'original cause of action is gone and can only be restored by getting rid of the res judicata' as observed by Lord Selborne in Lackyer v. Ferryman, above referred to. The cause of action having thus been exhausted, there is no original cause of action, either in whole or in part, on which the mortgagor can again sue for redemption. If he allowed the execution of that decree to become barred or was otherwise unable to execute the decree by reason of his not complying with the terms of the decree, the original cause of action or any portion thereof, will not thereby revive. Under the proviso to Section 93 of the Transfer of Property Act, it was, in my opinion, competent for him to obtain postponement of the day fixed for payment of the money, provided ho satisfied the Court that there was good and sufficient cause for his not being able to pay the amount on or before the day fixed. If he can be allowed to bring a fresh suit for redemption, this provision of the Transfer of Property Act that the time for redemption could be extended only on good cause, will be indirectly evaded.
31. It is true that until there is an order for foreclosure absolute or sale the right of redemption is not extinguished and there was no such order in the present case. That will not entitle him to bring a now suit for redemption, but lie can exercise his right of redemption under the decree, if he be not barred by limitation, by obtaining a postponement of the day fixed for payment, if he makes out a good cause for such extension of time. That the decree itself docs not operate to extinguish the right of redemption by efflux of the time limited in the decree, but such extinguishment is postponed until the actual passing of an order for foreclosure absolute or sale, is really a concession in favour of the mortgagor so as to enable him to obtain an extension of time on good cause shown, even after the expiration of the period fixed in the decree, whereas if the decree itself operated so as to extinguish the right of redemption on the expiration of the period fixed in the decree, much extension cannot be made and, in fact, if made, will be inoperative. Full effect is thus given to the provision made in the Transfer of Property Act in accordance with the Chancery Practice in England, for extinguishing the right of redemption only on the passing of an order for foreclosure absolute or sale, the only difference between the English and Indian laws being that under the former the order dismissing the suit for redemption in default of payment operates as the order of foreclosure absolute here passed under Section 98 of the Transfer of Property Act.
32. In the case of mortgage-decrees there is provision made for extinguishment of the security and of the right of redemption) but in the case of decrees in ejectment and other decrees there is no such provision, and Section 28 of the Limitation Act applies only to suits and not to the execution of decrees. If the owner of property obtains a decree in ejectment against a trespasser or a tenant whose tenancy has expired, can he bring nether suit in ejectment on his original cause of action as owner or landlord on the ground that his ownership has not been extinguished by the decree in the former suit or by any order passed therein in a subsequent decree? If a mortgagor is to be at liberty to bring successive suits for redemption subject only to the extraordinarily long period of limitation applicable to suits for redemption, it will be difficult to discover or suggest a reason for denying such liberty to the owner of property who seeks to eject a trespasser subject, of course, to the comparatively short period of limitation applicable thereto. There are numerous instances in which the right of action alone is extinguished or destroyed, though the right of property to which it relates has not been extinguished. Thus if a suit is dismissed under Section 102, Civil Procedure Code, for default of plaintiff's appearance or the plaintiff withdraws the same (Section 373, Civil Procedure Code) without obtaining permission to bring a fresh suit on the same cause of action, the right of action is extinguished and he is precluded from bringing a fresh suit on the same cause of action though his substantive right of property may not be extinguished and the dismissal or withdrawal may not even operate as res judicata against him in respect of his right of property. Similarly, if a plaintiff omits to sue in respect of any portion of his claim, he is precluded Section 43, Civil Procedure Code) from suing in respect of the portion so omitted, though his right in respect of such portion may not be extinguished. I fancy that the result will be the same even if the suit so dismissed or withdrawn or portion omitted is by a mortgagor or mortgagee as the case may be. Certainly the result must a fortiori be the same if a decree has been given and thus not only has the original cause of action gone, but the decree also operates as res judicata in respect of the right adjudged.
33. In regard to a mortgagee's title in default of redemption by the mortgagor, the obtaining of an order for foreclosure absolute or of an order dismissing the mortgagor's suit for redemption (which has the effect of an order for foreclosure absolute) is necessary to perfect his title as owner see .Dan. Ch. Pract. (6th edition) p. 1405; Press v. Coke 6 Ch. Ap. 645. Under the English law such an order operates as a ' conveyance on sale and has to be stamped ad valorem as such (vide Sections 54 and 57 of the English Stamp Act, 1891, and suction 6 of the English Finance Act, 1898. In Wills v. Luff 38 Ch. D. 197 Chitty, J., says that after the passing of an order for foreclosure absolute, the action is at an end with the exception of the settlement of a conveyance by the judge if the parties differ. Such a conveyance is exempt from the payment of ad valorem stamp duty (proviso to Section 6 of the English Finance Act, 1898) if such duty had been paid upon the decree or order for foreclosure absolute. A release by the mortgagor after judgment of foreclosure is equivalent to an absolute foreclosure by order Reynolds v. Perkins, Ambl. 565 and no order of foreclosure absolute need be obtained. Under the Transfer of Property Act the order of foreclosure absolute passed in execution of the decree operates judicially as an extinguishment of the right of redemption and as a transfer of property in execution of decree or order of a Court [Section 2(d) of the Transfer of Property Act] and the title of the mortgagee as owner is thus perfected and completed. The effect of an order of foreclosure absolute obtained by a legal mortgagee is to vest the ownership and beneficial title to the mortgaged land, for the first time, in the mortgagee Heath v. Pugh (C.A.) 6 Q.B.D. 345 on appeal to the House of Lords 7 A. C. 235. Under the English Chancery Practice, even after order of foreclosure absolute, the foreclosure can be re-opened on good and sufficient cause Ford v. Wastell 2 Ph. 591; Wills v. Luff 38 Ch. D. 197 Dan. Ch. Pract. (6th edition, p. 1406).
34. I shall tow proceed to consider some decisions of the other High Courts bearing upon the question now under consideration. In Chaita v. Purum Sukh Agra H.C. Rep. 1867, p. 256 it was held by a Division Bench of the North-West Provinces High Court (Morgan, C.J. and Spankee, J.) that when a decree for redemption is obtained but not executed within the prescribed period for execution, the mortgagee does not, by such omission, cease to be the mortgagee, but the mortgagor or his representative may still maintain a fresh suit for redemption. In Doubee Singh v. Jowkee Ram Agra High Court Rep. 1868, p. 381) it was held by a Full Bench of the same High Court (Morgan, C.J., Roberta, Pear von, Turner and Spankee, JJ.) that when the nature of the decree is such that it could be executed, the decree-holder cannot bring a fresh suit, founded upon the cause of action which has already been adjudicated upon and also upon the decree the execution of which was allowed to be barred by the law of limitation. In Sheik Goolam v. Alla Rukhee 1871 P.H.C.R. 62 a Full Bench of the same High Court (Morgan, C. J., Rims, Turner, Spankee and Turnbull, J.J.) following the last mentioned Full Bench decision, held that a mortgagor who had obtained a decree for possession of the mortgaged property on the ground that the mortgage has been satisfied, but allowed the execution of the decree to become barred by limitation, cannot maintain a subsequent suit based on his old title and be permitted to revert to the position which he held prior to the institution of the first suit and to ask for remedy by a fresh suit. This was followed in 1882 by a Division Bench of the same High Court (Straight and Mahmood, JJ.) in Aurud Singh v. Singh Prasad I.L.R. 4A. 481 in which it was held that a mortgagor who had obtained a decree for redemption but has allowed the execution of the same to become barred by limitation cannot bring a fresh suit to redeem the same mortgage. In Muhummad Sami-ud-din v. Mannu Lal I.L.R. 11A. 386 a Division Bench of the same High Court (Straight and, Brodhurst, JJ.) in 1889 held that the Pull Bench decision in 1871 North-West Provinces High Court Rep. p. 62 was not binding since the passing of the Transfer of Property Act and a second suit for redemption was decreed. I need hardly say that there is nothing in the Transfer of Property Act which militates against the authority of the Pull Bench decision, if it was good law--as in my opinion it was--before the Transfer of Property Act. But if the decision in I.L.R., 11 A. 886 was based, as apparently it purports to be, on the ground that the former suit for redemption was premature inasmuch as, at the date of the former suit, the usufruct had not liquidated the mortgage debt, and that, therefore, the term of the usufructuary mortgage had not expired, the decision would probably be right. The same High Court (Edge, and Burkitt, JJ.) in David Hay v. Razi-ud-din I.L.R. 19 A. 202 after reviewing all the previous decisions of that Court, as well as the decisions of the High Courts of Madras and Bombay, held that a mortgagor whether under a simple or usufructuary mortgage who had obtained a decree for redemption and allowed such, decree to lapse by reason of his not paying the decretal amount within the time limited for payment by the decree, cannot subsequently bring a second suit for redemption of the mortgage in respect of which such infectious decree had been obtained. The Full Bench decision of the same Court in 1871 was approved and followed as also the decision of the Bombay High Court in I.L.R. 13 B. 567. The decision in I.L.R. 11 A. 386 was dissented from as also the decisions of this Court in 6, 7 and 15 Madras on the ground that' the view of the law to be found in those cases is not supported by the law as administered in such matters in England or the law as enacted in the Civil .Procedure Code or the Transfer of Property Act, and that the Full Bench decision in 1871 'was not affected by the Transfer of Property Act and is in harmony with that Act and is perfectly sound law.' It was further held that the allowance of a second suit for redemption would be to go contrary to the principle of Section 244, Civil Procedure? Code, and that the fact that a mortgagor has failed to comply with his decree for redemption within time cannot give him a fresh cause of action.
35. The question was again considered by a Division Bench of the same High Court Strachey, C.J. and Knox, J. in 1899, in Dondh Bahadur v. Tek Narain Rai I.L.R. 21 A. 251. In that case the simple question was whether a decree in a suit for redemption of a usufructuary mortgage, not being n conditional decree for redemption under Section 92 (Transfer of Property Act) but simply dismissing the suit on the ground that the mortgagor had not prior to its institution paid, or tendered the mortgage money at a time authorised by the mortgage deed had the effect of foreclosure or of res judicata so as to bar a second suit for redemption which was brought after tender of the whole of the mortgage money at the time appointed in the deed, between the dismissal of the first suit and the institution of the second. It was held - and if I may venture to say so rightly--that the second suit was maintainable and that the decision in I.L.R. 19 A. 386 was clearly distinguishable. The first suit having been dismissed as premature, whether rightly or wrongly, on the 'round that the cause of action had not then arisen could be no bar to the subsequent suit which was brought after the cause of action had accrued according to the decision in the former suit. The Chief Justice, however, proceeded to refer to the conflict of decisions between the case in I.L.R 19 A. and the Full Bench decision of 1871 on the one hand and that in I.L.R. 11 A. and the decisions of the Madras High Court and a decision of the Calcutta High Court in 22 W.R. 172 on the other and observed that the proposition of law as enunciated in I.L.R., 19 A. cannot be regarded as absolutely settled law.'
36. Turning now to the decisions of the Bombay High Court, the case of Gan Savant Bal Savant v. Narayan Dhond Savant I.L.R. 7 B. 467 is exactly in point; and in fact it is stronger than the present case inasmuch as there the decree which was pleaded in bar of the second suit did not direct foreclosure. West, J., in concurring with Kern-hall, J., that a decree for redemption, on default of the decree-holder to pay the money declared to be due within the time fixed by the decree or if none be fixed within the time allowed by the law for execution of the decree operates as judgment of foreclosure and debars the mortgagor from afterwards bringing a second suit to redeem the property, observes as follows: - 'It follows then from the leading principle of res judicata that the same matter shall not be agitated again on the original ground so as to imperil the stability of the decision formerly given. 'Where there is res judicata, the original cause of action is gone and can only be restored by getting rid of the res judicata.' The existence of a decree in plaintiff's favour may seem not to be a good reason for depriving him of a right to sue and under the Roman law the plea of res judicata could be met by a replication of 'res secundum se judicata,' Under the English law also, a judgment, it is said, is a bar only when it has negatived the right--per Bramwell, L.J., in Poyser v. Minors 7 Q.B.D. 338 but this holds generally only when the cause of action in the second suit has arisen on the same original right at a different time from the first, or the first action went off on a mere technical defect. Under the Anglo-Indian law it has long been recognized that a decree-holder must obtain satisfaction of his decree by execution, not by another suit--Kisan Nandram v. Anandram Bachaji 10 B.H.C.R. 483 Fakirappu v. Pandurungappa I.L.R. 6 B. 7. A new suit cannot be brought either on the original cause of action or, save in special cases, on the decree in which that cause had become merged. The object of the Legislature has been to prevent continued litigation on the same grounds, and this would obviously be defeated by allowing a decree-holder to obtain from putting his decree in force and proceed again on the same cause as before.' Pinhey, J., who dissented from the majority, based his dissent on another point, i.e., that the plaintiff in the second suit could not be regarded as having been represented by the plaintiff in the first suit. The next case in the same Court is Malaji Sagoji I.L.R. 13 B. 567. This is a very instructive case and here the principle of res judicata as a bar to the second suit was carried further than is necessary in the present case. The first suit was brought as one for redemption, and the decree therein did not provide for payment of the mortgage-debt within a fixed time, nor for foreclosure or sale incase of default. The second suit was brought by the mortgagee for sale and pending that suit and before the execution of the decree in the former suit was barred by limitation, the mortgagor paid into Court the sum directed to be paid by the redemption decree. But the mortgagee refused to accept payment and insisted upon his right of sale in the subsequent suit which he brought as plaintiff It was held that as no time was fixed for payment in the redemption decree, the mortgagor had three years within which to execute the decree and as he had paid the money within three years he was entitled to recover the property. It was further held that the suit brought by the mortgagee for sale was barred by the decree in the redemption suit under explanation II of Section 13, Civil Procedure Code, inasmuch as the mortgagee might and ought to have, as defendant in the first suit, obtained a provision in the redemption decree for sale in default, of payment.
37. The Transfer of Property Act was not in force in Bombay when either of the above decisions was passed. Whether or not the decision that the subsequent suit for sale which was brought by the defendant in the former suit was barred by the decree in the first suit, is strictly warranted by Section 13 (explanation II) of the Civil Procedure Code, it is certainly in conformity with Section 57 of the Transfer of Property Act which provides that a mortgagee can bring a suit for foreclosure or sale only before a decree has been made for redemption of the mortgaged property. It is, therefore, of the highest importance that decrees in mortgage suits should be complete not only so far as the rights of the plaintiff are concerned, but also in so far as the rights of the defendant are concerned; and the fact that the decree is imperfect will not enable the defendant to enforce his rights under the mortgage, as plaintiff in a suit subsequently to be brought by him, if such rights could have been enforced by him in the former suit and provided for in the decree passed therein.
38. In Siva Prasad v. Nandoo Lal I.L.R. 18C 139 it was contended that until an order absolute for sale (therein referred to as decree absolute) was made, the right to redeem existed and that the suit should be regarded as a suit to redeem. In overruling this contention Macpherson, J., observed as follows: - 'Even if there is no order absolute the decree nisi directing the sale is in existence, and if the right to redeem be still olive it cannot be enforced by a separate suit.'
39. There are two decisions of the Privy Council which have been referred to in the course of argument and which I shall now notice. The first is Hari Raxji Chiplunkar v. Shapurji Hormasji Shet I.L.R. 10 B. 461. In that case a suit for redemption w as brought by the representative of the mortgagors, basing the same on a decree for redemption passed in favour of the mortgagors, as defendants, in a former suit brought by the mortgagees to enforce the mortgage. The decree in the former suit was made in accordance with the award of arbitrators to the effect that the defendants therein were to pay in all Rs. 2,396 to the then plaintiffs on a day to be fixed, redeeming the mortgaged land which till payment was to remain in the possession of the mortgagees--the plaintiffs in the first suit. But no date was in fact fixed, it was held both by the High Court and by the Privy Council on appeal that the right of the mortgagor--the plaintiff--was a right to execute the above decree as defendant therein, subject to the law of limitation and not a right to sue as for the redemption of the mortgage and obtain a decree for redemption and possession in a fresh suit based on the former decree. Their Lordships of the Privy Council, adverting to a contention raised by the appellant's counsel that the mortgagor could fall back upon the right to redeem the original mortgage, observed as follows: - 'The difficulty in the way of the appellant availing himself of that is that it. is a different case from that which he made in the plaint. In the plaint he did not seek to redeem the mortgage of 1806 * * * but treated the decree as the mortgage which lie sought to redeem, and supposing that he could,, according to the decision of the High Court of Madras which was cited I.L.R. 7 M. 423 fall back upon the mortgage of 1806, in their Lordships' opinion he is not at liberty to do that upon the present appeal. It would be making a different case from that which he made in the lower Courts and on which the case has been tried and decided.'
40. With all respect, I entirely fail to sec: how, as observed by Shephard, J., in I.L.R. 19 M. 40 this can be regarded as giving a 'qualified support to the decisions of this Court in 6, 7, 8 and 15 Madras The above decision of the Privy Council was also referred to in I.L.R. 21 M. 18 and I.L.R. 19 A. 205 and regarded as expressing neither approval nor disapproval of the decision of this .Court in I. L.R. 7 M. 428 which alone was cited before the Privy Council. The other Privy Council decision is that in Papamma Row v. Pratapa Ramachandra Razu I.L.R. 19 M. 249. In that case, the condition of the mortgage was 'if the debt is not discharged according to instalments, you (mortgagee) should recover the same by means of the mortgaged property, the crops of our cultivation and from our other property and from our person according to your wish.' The first suit was brought by the mortgagee, as plaintiff, for a decree directing the defendants (mortgagors) to pay the amount then due with subsequent interest ' by means of the under mentioned property and other property.' The decree in the first suit was in these terms:--' In accordance with the custom prevailing in the Court in this Presidency, three months' time will be allowed to the defendants within which to pay up the whole sum now decreed, principal, interest and costs, failing which the plaintiff shall be put in possession of the nonviable and immoveable property specified in the bond sued upon and in the plaint and schedule, as provided, in the terms of the bond.' The mortgagor subsequently brought a suit for an account, alleging that the whole mortgage debt has been discharged by the rents and profits received by the mortgagees and that the mortgagors were entitled to restitution of the property. The mortgagees resisted the suit by contending that the decree in the former suit operated as a foreclosure of the mortgage and that the village had become absolutely heir property in virtue of that decree. Their Lordships held that the decree was not according to law, but not having been set right either by way of review or on appeal was binding on the parties and that there being nothing in the judgment to suggest a foreclosure any more than usufructuary possession, the mortgagee--who was originally a simple mortgagee--must lie regarded ns having become, under the decrees, mortgagee in possession and as such he must submit to be redeemed. The principle of this decision is that the former decree has biennially executed by the mortgagee recovering possession of the mortgaged property from the mortgagors; but that such possession being only in his character as mortgagee is liable to be redeemed as from a usufructuary mortgagee and that can be effected only by a new suit, not in execution of the former decree. It would be just the same as if a simple mortgagee, who was entitled to get possession as usufructuary mortgagee, in default of payment on the date stipulated in the mortgage bond, brought a suit against the mortgagor for such possession and recovered the same in execution of a decree passed in such suit. He will then stand in the position of a usufructuary mortgagee and can be redeemed only by a fresh suit. Neither of the above decisions of the Privy Council can be regarded as throwing any light upon the question now under consideration.
41. Apart from the Duchess of Kingston's case and other leading-cases expounding the general principles of fen judicata and their application to particular cases, there is hardly any English authority bearing directly upon the particular question now under consideration. Marshall v. Shrewsbury 10 Ch. Ap. 250 which was cited and relied upon on both sides, throws very little light upon the question. James, L.J., observed that the dismissal of a bill for redemption operates as a decree for foreclosure because the mortgagor cannot afterwards file another bill for the same purpose. He is not allowed thus to harass the mortgagee.
42. A mortgagor bringing a second suit for redemption can hardly arise in England unless the former suit was dismissed for want of prosecution. Curtis v. Holcombe 6 L.J. Ch. 156 referred to by Strachey, C.J., in I.L.R. 21 A. 251 has no resemblance whatever to the present case. In that case, the first suit Tenlor v. Curtis Younge 2 L.J. Ex. 17 was brought by the mortgagee for foreclosure, but, it was held, on the construction of the mortgage-deed, that it was a Welsh mortgage (corresponding to the usufructuary mortgage, under the Transfer of Property Act) and that, therefore, there could be no right of foreclosure and the suit was accordingly dismissed.' Subsequently, the mortgagor brought a suit for redemption against Holcombe, the assignee of the original mortgagee (Tenlor), and the defendant contended that as he had not been permitted to foreclose the plaintiff ought not afterwards to be allowed to redeem. The Master of Rolls overruled the contention and held that the plaintiff was entitled to redeem although the defendant had no right to foreclose but that after having obtained a decree for redemption, if he did not redeem, he must be foreclosed of his right of redemption and the bill should stand dismissed in default of redemption. Under Section 92 of the Transfer of Property Act there could be no decree for foreclosure in default of redemption of a usufructuary mortgage, but a decree for sale will be passed in case of default.
43. Respondents' counsel was able to rely only upon a general statement made in Dan. Ch. Pract. p. 481, Fisher on 'Mortgages,' paragraph 1385, and Robbins on 'Mortgages,' p. 1042, that a decree for foreclosure in itself, not followed by the order of foreclosure absolute is not a good defence to an action to redeem. At p. 869, Robbins on 'Mortgages' it is also stated that a mortgagee may after decree for redemption bring a suit for foreclosure, unless it is done merely to accumulate expenses. The authority relied upon by the said text-writers in support of these propositions is certainly very slender, it not shadowy. The latter proposition is directly opposed to Section 67 of the Transfer of Property Act which provides that a mortgagee can enforce the mortgage by foreclosure only before a decree has been made for redemption of the mortgage, and I do not pause to examine the authorities cited by Robbins Shepherd v. Titcly 2 Atk. 348 Grugeon v. Gerrard, 4 Y & C.119 Dunstan v. Paterson 2 P.L. 341 and the Chancery Practice obtaining at the time of those decisions and determine how far they support the proposition. The principal authority cited by the three text-writers in support of the first proposition is the case of Senhousc v. Earle which in its first stage is reported in 2 Ves. 450 and in its later stage in Ambl. 285. The bill (filed in 1752) was for redemption and in overruling a.plea in bar Hardwicke. L.C. said that 'he remembered a case of this sort, Jones v. Kenrick, where to a bill of redemption there was a plea of decree for foreclosure in the common form with averment of non-payment of money, etc. ,but no final order for foreclosure and it was an old decree; but, notwithstanding that Lord King allowed it. From which he knew there was an appeal and (though it was said at the bar to be compromised) he took it, to be reversed, for it was apprehended to be wrong ; as notwithstanding such plea and length of time may be a good defence, yet as a plea it could not stand for want of a final order.' In dismissing the bill on the merits on another point (Ambl. 285) the Lord Chancellor, adverting again to Kenrick v. Jones observed that there was no final order for foreclosure, and therefore it was insisted that the redemption was open, but it appearing that at the time of obtaining that foreclosure, it was not the course of the Court to have such final order the objection was overruled. The Lord Chancellor's recollection of Kenrick v. Jones (which is apparently nowhere reported) in 1752 was that the decision of the original Court allowing the plea of decree for foreclosure in the common form with no final order for foreclosure as a valid plea to a bill for redemption must be taken to have been reversed in appeal, though it was said at the bar that the appeal was compromised; but in 1755 he justified the decision of the lower Court on the ground that the decree of foreclosure in the common form would itself operate as a. bar, as it was not the course of the Court at that time to have a final order of foreclosure.
44. The case of Senhouse v. Earle is not cited in Chitty's 'Equity Index' or Mew's 'Digest' as an authority for the proposition deduced therefrom by the above text-writers, but for quite a different proposition, which was the ground on which the bill was finally dismissed on the merits (Ambl. 285). Whether the bill in Senhouse v. Earle was an original bill or a supplemental bill in addition to or a, continuance of or a dependency of the original bill or one brought for the purpose of the cross-litigation or of controverting or of carrying a decree of Court into execution (Story's Eq. Pleadings, paragraphs 16 to 21) is more than I can say, nor can I say, having regard to the fact that the defendant in the original bill was the plaintiff in the subsequent bill, how far the law of res judicata had developed at that time, about twenty years prior to the Duchess of Kingston's case.
45. In Daniell's 'Chancery Practice' the only case cited is Senhouse v. Earle. But Fisher also cites Quarrell v. Beckford 1 Mad. 269 13 Ves. 377 and Robbins, Ford v. Hastell 2 P.L. 591. But it is not clear whether these two cases sire cited in support of the proposition or simply as having an indirect bearing thereon. In the latter case, all that was laid down was that even after the enrolment of the order of foreclosure absolute, the time may be enlarged. As far as I am able to understand the former case, it really has no bearing whatever upon the proposition that the foreclosure; cannot, be pleaded as a bar to an action to redeem unless there has been a final order of foreclosure.
46. The above review of the decisions directly bearing or supposed to bear upon the question immediately under consideration establishes that the preponderance of case law is decidedly against the view taken by this Court, and that the assumption that the view is in conformity with the English law rests only upon the very slender basis of Senhouse v. Earle, the proposition deduced from which is itself opposed to the earlier unreported case of Henrick v. Jones (cited from memory and explained therein by the Lord Chancellor) and in particular to the Fundamental doctrine of res judicata as long established under the English system of jurisprudence and recognized and acted upon since the Duchess of Kingston's case both in England and in India.
47. I would answer the reference in the negative for the reasons stated by the learned Chief Justice mid Sir Bhashyam Aiyanyar, J. whose judgments I have had the advantage of perusing.
48. The predecessor in title of the present plaintiff brought in 1889 a suit to redeem a mortgage of 1858. The ease was decided after a hearing on the merits by the Subordinate Judge, and his decree was confirmed on appeal by the District Judge and the High Court. Under this decree it was directed that on payment by the plaintiff into Court of a certain sum on or before a fixed date the defendants should deliver up to him all documents relating to the mortgaged property and re-transfer the property to him and that if such payment was not made on or before the date fixed, the property should be sold. The plaintiff did not pay within the prescribed date, and the defendants did not apply under Section 93 of the Transfer of Property Acft for an order for sale. The plaintiff, after the date fixed had expired paid the money into Court and the Subordinate Judge directed the defendants to receive it and put the plaintiff in possession of the mortgaged property. In the application for execution which the plaintiff filed requesting that the money should be received from him he gave no explanation for his delay and did not apply for an extension of the time allowed by the decree for payment. Subsequently the 31st defendant in the suit put in a petition asserting that as the plaintiff had not paid the amount entered in the decree within the time there fixed he had lost his right to execute the decree and praying therefore that re-delivery of the property might be ordered. The Subordinate Judge held that under the decision reported in Kanara Kurup v. Govinda Kurup I.L.R. 16 M. 214 as long as the mortgagee abstained from obtaining an order for sale under Section 93 of the Transfer of Property Act, the mortgagor's equity of redemption subsisted. He accordingly dismissed the petition. On appeal, however, the District Judge reversed the decision of the Subordinate Judge, and this appellate order was upheld by the High. Court in the judgment reported in Vallabha Valiya Rajah, v. Vedapuratti I.L.R. 19 M. 40. The result of these proceedings was that the plaintiff was ousted from possession of the mortgaged property, and he subsequently in 1897, filed the suit which has led to the present reference in which he on the same cause of action as that on which the prior suit had been based sued a second time to redeem the mortgage of 1858. The facts being as I have stated, there appears to me to be no doubt that the reference which has been made to us must be answered in the negative and that it must be held that it was not open to the plaintiff to bring the present suit. The provisions of Section 13 of the Civil Procedure Code are, in my opinion, a bar to this suit and the learned counsel for the plaintiff has in his argument before us scarcely attempted to show that the questions at issue are not res judicata. His main argument has been that, as the relation of mortgagor and mortgagee still subsists between the plaintiff and. the defendants, it must be held that it is open to the former to bring the present suit for redemption. The following passage from the judgment of the High Court reported in Karuthasami v. Jagannatha I.L.R. 8 M. 478 is relied on, 'In one judgment the relation on which the mortgagor and mortgagee stood to one another was not terminated by the decree. It was intended by the decree that it should be terminated on the happening of a certain event which event has not occurred. The relation then still exists and the right to redeem is inseparable from the relation so long as it exists.' There can of course be no doubt as to the correctness of the proposition of, law here laid down, but it cannot be held that it therefore follows that a plaintiff who obtained a decree for redemption which he has failed to execute can bring a second suit on the same cause of action. His remedy is to execute the decree that he has already obtained, and it clearly is illogical to argue that if for any reason that decree has ceased to be executable the plaintiff can evade the bar under the provisions of Section 13 of the Civil Procedure Code and bring a fresh suit. The question has not been argued before us but as far as I can judge from the record it appears that it is still open to the plaintiff to execute the decree of 1890. The only point that was decided in the judgment reported in Vallabha Valiya Rajah v. Vedxpuratti I.L.R. 19 M. 40 was that the plaintiff having made default in payment of the mortgage money within the time fixed by the decree was not entitled to apply for execution. The decision was no doubt correct, but it does not therefore follow that the decree was incapable of execution. It was clearly open to the plaintiff to apply under the last clause of Section 93 of the Transfer of Property Act for an extension of the time allowed to him for payment, and if he was able to show good cause for his application the Court would have been bound to grant him the extension of time asked for. The ruling of the Bombay High, Court reported in Nandram v. Babaji I.L.R. 22 B. 771 as to this matter is in my opinion correct and should be followed.
49. We should, I consider, answer the reference made to us in the negative.
50. This second appeal coming on for final disposal after the expression of opinion of the Full Bench, the Court delivered the following.