1. The original suit in this case was a suit for redemption of a mortgage. The suit property was mortgaged usufructuarily to the defendant on 29th August, 1904. In the mortgage was also a personal covenant to pay. The defendant sued on 2nd August, 1912 in O.S. No. 430 of 1912 and got a preliminary decree for sale on 14th October, 1913 and a final decree on 25th February, 1914. No action was taken by him under the final decree. On 2nd September, 1912, pnedente lite the same mortgagor mortgaged the property to the plaintiff's father. The plaintiff sued in O.S. No. 289 of 1918 and got a decree for sale in 1918, brought the property to sale and bought it in Court auction. He now sues to redeem the mortgage. The plaintiff was not a party to the suit of 1912, but the defendant contends that, as his mortgage was pendente Iite and the plaintiff, therefore, has no higher rights than his mortgagor, and as the mortgagor did not choose to redeem under the decree of 1913, the mortgagor and therefore the plaintiff is barred by res judicata from redeeming. Both the Trial Court and the Lower Appellate Court held that the suit was barred by res judicata. In second appeal Devadoss, J., has held that it is not, and against this judgment this Letters Patent Appeal is filed. It has been ably argued at length before us by Mr. C.S. Venkatachariar for the plaintiff and Mr. T.L. Venkatrama Aiyar for the defendant.
2. The real question at issue may be shortly stated, but cannot be as shortly answered. It is, when a mortgagor has failed within the time fixed in the preliminary mortgage decree for sale to pay up the amount due under the decree, and a final decree for sale has been obtained, does a suit for redemption by him lie or is his cause of action barred by res judicata? There is a long series of decisions, some taking one view and some the other, passed before and under the provisions of the Transfer of Property Act, but there is no direct decision under the present Civil Procedure Code after the repeal of Sections 86 to 89, 92 and 93 of the Transfer of Property Act and their re-birth in other forms under Order 34 of the Civil Procedure Code. The most important case in this Court is the Full Bench decision in Vedapnrathi v. Vallabha Valiya Rajah 12 MLJ 128, passed under the old provisions of the Transfer of Property Act and the Civil Procedure Code, and, if the principles of that decision have not been reversed by the Privy Council and arc still applicable in spite of the changes in the law, that decision is binding on this Bench. Otherwise, the matter is res integra.
3. The case with which the Full Bench had to deal was based on a usufructuary mortgage of 1858. There had been a suit and a decree for redemption, the decree being passed under Section 92 of unamended Transfer of Property Act containing a provision for sale of the mortgaged property, if the mortgage amount was not paid, but containing no foreclosure clause. The decree was not executed and the decree amount was not paid but no order absolute for sale under Section 93 was obtained by the mortgagee. A second suit for redemption was then filed and the Full Bench was called on to decide whether in these circumstances the second suit was maintainable. It was held by all five Judges that, whether or not the relationship of mortgagor and mortgagee subsisted, because of the fact that no order absolute under Section 93 had been obtained, and the property, therefore, had not been sold, the cause of action, namely the right to redeem, had become merged in the decree, and was, therefore, res judicata and no second suit for redemption would lie. We are not pointed to any subsequent decision of the Privy Council which has controverted that decision, and so far as it goes, therefore, it is binding on us. Mr. Venkata-chariar, however, contends that, even accepting that position, the preesnt case differs from the Full Bench case in two vital particulars which will take it out of the purview of that decision. These differences are, first, that the first suit here on which the decree for sale was obtained was not a suit by the mortgagor for redemption but by the mortgagee for sale, and secondly, that the changes in the law since the Full Bench case render its principles no longer applicable. These two points may be dealt with together as they are intimately connected.
4. It is essential to recall the terms of the Transfer of Property Act under which that decision was passed. Under Section 88 of that Act, in the event of the plaintiff-mortgagee's success in a suit for sale the decree is first to take an account and declare the amount due and secondly, to order that, if the mortgagor pays the amount into Court within the time fixed, he shall be put in possession of the property, and thirdly, to declare that, if the amount is not so paid, the property shall be sold. Section 89 provided that, if the mortgagor pays the amount within the time fixed, he shall get possession, and that, if payment is not so made, the mortgagee shall apply lor an order absolute for sale and obtain it and thereupon the mortgagor's right to redeem and the security shall both be extinguished. A decree in a foreclosure suit, Sections 86 and 87, followed similar lines, and, in default of payment by the mortgagor, the plaintiff was entitled to obtain an order absolute declaring that the mortgagor is absolutely debarred from all right to redeem, and on the passing of such order the mortgage debt is deemed to be discharged. A decree for redemption Sections 92 and 93 also followed similar lines, and the result of non-payment was that the defedant mortgagee may appy for an order absolute that the mortgagor is absolutely debarred from all right to redeem, or that the property be sold on the passing of such order the right to redeem and the security extinguished. In this Court it was held by the majority of the Full Bench in Mallikarjuna Shetti v. Lngamurthi Pantulu, etc. 12 M L J 279 (FB) that such orders absolute are not decrees but proceedings in execution. The decree to be executed was what is now styled the preliminary decree, and in such a decree, in a suit for sale or redemption the decree inter alia directed payment of the money by the mortgagor and delivery thereon of the property by the mortgagee.
5. Now Mr. Venkatachari's first point is this:
When the decree for sale was under Section 89 and not under Section 93 it was open to the mortgagor even after the order absolute for sale to execute that decree so far as it was executable by him and to pay up the mortgage amount, in fact up to the time when the property was actually sold; and he deduces therefrom that the right to redeem was not put an end to by an order absolute for sale under Section 89. This has, no doubt, been held in several cases, but it is essential to note that after the order absolute, payment was open to the mortgagor, not qua mortgagor under the provisions of the Transfer of Property Act, but qua judgment-debtor under the mortgage decree under the provisions of the Civil Procedure Code, which permit a judgemnt-debtor whose property is being sold in execution of a decree to pay up the decree amount at any time before the actual sale even under certain circumstances after the sale itself. It is true that some of these decisions, for example Ramubai v. Brahmadathan ILR (1892) M 366, Bibijan Bibi v. Sachi Bewah ILR (1904) C 863 and Misri Lal v. Mittu Lal ILR (1905) A 28 seem to favour the view that such payment after the order absolute is made by the mortgagor qua mortgagor in the exercise of the right to redeem, that is, that the right to redeem was still open after the passing of the order absolute for sale. But such a view must be held to have been erroneous since the Privy Council has definitely laid down in Hel Ram v. Shadi Ram ILR (1918) A 407 : 35 M L J 1 (PC) what the proper interpretation of Section 89 of the Transfer of Property Act is. The language docs not admit of doubt. Their Lordships say: The construction which their Lordships put on the language so used is that on the making of an order absolute the security as well as the defendant's right to redeem arc both extinguished, and that for the right of the mortgagee under his security there is substituted the right to a sale conferred by the decree. ' This brings Section 89 into line with the clearer wording of Section 93 on this point. Therefore, any payment made by the mortgagor after the passing of the order absolute for sale is not a payment qua mortgagor in the exercise of the right to redeem, but a payment by a judgment-debtor to avert the sale, in the exercise of a right given him qua judgment-debtor, springing from and dependent on the execution of the decree by the mortgagee. Whether on such payment the Court could in execution restore the property to the mortgagor on the ground that the decree implied that the mortgagee could not have payment except on the condition of restoring the property is an open question which Adipuranama Pillai v. Gopalaswami Mudali 18 M L J 259 is inclined to answer in the affirmative. In any case it is quite clear from the Privy Council dictum that under the old procedure both the security and the right to redeem were extinguished by the passing of the order absolute for sale and that the security, so far at least as the parties to the suit were concerned, was absorbed ino the decree and had no further existence outside it.
6. It follows, therefore, that the opportunity to redeem, given to the mortgagor under the old decree for sale just as under the old decree for foreclosure or redemption, might be lost for ever if the mortgagee obtained an order absolute under Section 87, 89 or 93. When under the decree or in execution of it the opportunity to redeem might in a certain contingency be lost for ever, it is difficult, almost impossible, to say that the right to redeem was not a matter in issue in the suit. It would not, of course, be lost unless the conditions which entailed its loss were fulfilled, but it was certainly a matter in issue it was so vitally in issue, that proceedings in the suit might result in its being lost for ever. This is the sum and substance of the Full-Bench decision.
7. Now all these sections of the Transfer of Property Act are gone and it is to be decided whether their disappearance involves the disappearance of the ground on which the former decision was based. Rules 2 and 3 of Order 34 of the Civil Procedure Code correspond to the old Sections 86 and 87 of the Transfer of Property Act, Rules 4 and 5 to Sections 88 and 89 and Rules 7 and 8 to Sections 92 and 93; but the clause under Section 89 relating to the extinguishment of the security and the right to redeem has disappeared, and does not appear in Rule 5, though similar clauses are retained in Rules 3 and 8. I think, however, it is clear that it does not appear in Rule 5 because it is not necessary. Under the old procedure the preliminary decree which allowed redemption remained the executable decree, and, therefore, the right to redeem was not extinguished automatically by the order absolute itself. So it was necessary to enact that on the passing of the order absolute it should disappear. Now the right to redeem embodied in the preliminary decree simply does not appear in the final decree which is now the executable decree. Therefore it disappears when the final decree is passed just as before it disappeared when the order absolute was passed. What was previously effected by direct statutory provision is now affected by procedure. But the contingency abovenoted still remains, namely, that when certain proceedings are taken in the suit after the preliminary decree for sale the right to redeem is extinguished. In my view therefore, the right to redeem is still vitally a matter in issue in the mortgage suit for sale. There is no essential change in the law which necessitates any inference that the principles laid down in the Full Bench case will not still apply. The final decree in its own terms makes it clear that the right to redeem is no longer enforceable under it, for it makes no provision for redemption. It cannot be that the adjudication on the right to redeem which was in issue in the suit and present in the preliminary decree somehow vanishes out of the suit upon the passing of the final decree. Before the final decree was passed, the mortgagor could not file a fresh suit for redemption because a suit is still pending in which the relief he seeks for is given him by the preliminary decree. He cannot by his own neglect attain a better position. I say 'a better position' because obviously if he can in such circumstances file a fresh suit for redemption he can choose his own time to redeem and is not bound to redeem within the time fixed by the preliminary decree. It seems to me an irrational contention that says in effect that the passing of a final decree resuscitates a right the right to file a fresh suit for redemption__which expired on the passing of the preliminary decree. The effect no doubt is to enable the mortgagee to force redemption on the mortgagor and to convert his decree for sale into one for foreclosure, but that again is no new factor introduced by the new procedure.
8. The only case in which any feature of novelty arises, is when a mortgagee is in possession and has obtained a final decree for sale, which has put an end to the mortgagor's right to redeem and will not proceed further to bring the property to sale. This is the case now before us and Mr. Venkatachari strongly urges that it puts the mortgagor in an unfair position, since he has under the final decree no power to compel the mortgagee to bring the property to sale. He urges that under the old procedure, where the executable decree was Executable by the mortgagor as well as by the mortgagee, the mortgagor could pay up the decree amount at any time, until the property was actually sold. But in practice I see no real innovation. Under the old procedure, the mortgagor could pay up (a) within the time fixed in the decree, then he paid as mortgagor, (b) when the decree was being executed then he paid qua judgment-debtor. He could not, qua mortgagor, have the time fixed in the decree extended see Vallabha Valiya Raja v. Vedapura-thi ILR (1895) M 40 , Adipuranam Pillai v. Gopalaswami Mudali ILR (1908) M 354. Therefore any payment after the time fixed, could only be in execution after the passing of the order absolute when the right to redeem was gone, and he paid only qua judgment-debtor. Such right was then equally as now, dormant unless and until the mortgagee took proceedings in execution. Thus the former right of paying up after the time fixed in the decree is the same and no other than the present right of paying up after the final decree, viz., the right qua judgment-debtor, to pay up, which right is in both cases contingent on the mortgagee proceeding to bring the property to sale and was not at any time exercisable independently of that contingency. There is no new hardship here, though there is no doubt some hardships, or at least some undue partiality by the law in favour of the mortgagee, who is in possession and elects to be content with having destroyed by a final decree his mortgagor's right to redeem and refuses to bring the property to sale under the final decree.
9. It may be that in view of this, Courts may be open to reconsider the position that the time granted for redemption in the preliminary decree for sale cannot be extended before the final decree (or order absolute) is passed. It is true that Rule 5 of Order 34 does not contain a provision similar to that in Rules 3 and 4 allowing the Court to extend the time for payment; but it is a power which may well be within the inherent powers of the Court, as in the case of preliminary decree for specific performance see Abdul Shaker Sahib v. Abdul Rahiman Sahib 44 M L J 107 or it may be that a suit may lie on the decree to compel the mortgagee to bring the property to sale, in view of the fact that a mortgagee, who delays to bring the property to sale, is frustrating the fundamental principle of the mortgage contract, and of the right to redeem as defined in Section 60 of the Transfer of Property Act, both now merged in the final decree, that his ultimate claim is not to the property but to his money, and to the recovery of that money by sale of the mortgaged property. However, that may be, I am clear that the new procedure neither affects nor requires any change whatever from the old position, laid down in the Full Bench case, that the right to redeem was in issue in the mortgage suit for sale and is therefore resjudicata when a decree in that suit was obtained. It may be noted incidentally that two of the learned Judges in the Full Bench case were of opinion vide their judgments in the Full Bench case Mallikar-junadu Setti v. Lingamurthi Pantulu (10); that the order absolute for sale was a decree, in fact a final decree, and yet that view did not dissuade them from holding that the 2nd suit for redemption did not lie, even though in their view the first suit had only reached the stage of a preliminary decree, since no order absolute had been obtained. In the Full Bench case, the right to redeem had not been extinguished by any order absolute, and therefore subsisted. Nevertheless the Full Bench were unanimous that the right to redeem was merged in the decree and was res judicata. My conclusion on this part of the case, therefore, is that to follow the Full Bench ruling even under the new procedure will inflict no new hardship on the mortgagor.
10. I shall notice very briefly a few of the cases cited before us, dealing first with High Court cases and then with the Privy Council cases. The greater number are suits in which the first suit was for redemption and the second suit also for redemption, and either the decree in the first suit did not provide for foreclosure of the right to redeem, or, if it did, neither party had taken any steps to foreclose. Such decisions in Madras prior to the Full Bench case must be held to have been overruled, so far as they are inconsistent therewith for example, Periandi v. Angappa ILR (1884) M 423, which was however, not under the Transfer of Property Act, Vallabha Valia Rajah v. Veda-puratli 5 M L J 282 (FB) and Ramunni v. Brahma Dattan ILR (1892) M 366 which rejected the then Bombay doctrine of constructive forclosure by res judicata see Gan Savant Bal Savant v. Narayan Dhand Savant (1883) ILR 7 Bom 467, even when the decree in the first suit did not provide for foreclosure. The case Maloji v. Sagaji ILR (1888) 13 Bom 567, though there the second suit was not for redemption but by a mortgagee for sale, also followed the res judicata principle, holding that the mortgage was. merged in and could not be separated from the redemption decree obtained in the first suit. The Allahabad Court followed suit in Devid Hay v. Hazi-ud-din ILR (1897) A 202 and so did Bombay in Bapuji Ramachandra v. Guja Main Dhangar ILR (1917) 42 Bom 246, which, however, must be taken to have been overruled by the Full Bench of Bombay in Ramji v. Bandharinath (1918) ILR 43 Bom 334 (FB) which has altered the previous view in Bombay. The Full Bench case in Vedupurathl v. Vallabha Valiya Rajah 12 M L J 128 already mentioned is also a case in which both suits were for redemption. To come to cases in which the first suit was, as in the present case, a suit for sale and an order absolute for sale had been obtained but no further action had been taken, this High Court in Ranga Jiyangar v. Narayanachariar 30 M L J 13, where the first decree was obtained in 1872 prior to the passing of the Transfer of Property Act held that the second suit for redemption was barred. In Rama v. Bhagchand ILR (1914)39 Bom 41 the later Bombay view prevailed that the suit was not barred by res judicata. No previous case in India is discussed in that judgment and only one English case is cited. Shaw Mehdi Hasan) v. Ismail Hasan ILR (1920) A 517 a case under the present Civil Procedure Code, adopted the Bombay view that the suit was not barred. An earlier Allahabad case reported in Sham Sundar Lal v. Har Narayan (1910) 9 IC 158 , takes the same view. So far as this Court goes then, the general principle of res judicata has been applied to the case where the first suit was a suit for sale.
11. Coming now to the Privy Council cases, the earliest is one of 1873, Gokuldas v. Kriparam (1873) 13 Beng LR 205 (PC). The first suit was by the mortgagee for sale. The decree in that case was a curious one which did not provide any opportunity to the mortgagor to come in and redeem, and in execution of which' the mortgagee somehow got into possession. It was held that the mortgagor 'had never had his legal opportunity of redeeming and, therefore, a suit for redemption lay in the circumstances of the case. That is no authority in favour of the respondent. In Hari Ravji Chiplunkar v. Shapitrji Hormasji Shet (1886) ILR 10 Bom 416 (PC) the question whether the mortgagor could, instead of suing for redemption on a decree for redemption, fall back on the original mortgage and claim to redeem it was not decided. In Mahabir Pershad Singh v. Macnaghten (1889) ILR 16 C 682 (PC) where the mortgagee had got a decree for sale and the mortgagor sued to have the sale set aside and certain set-offs allowed, it was held that the second suit was barred by res judicata. The case is not much to the point here. In Raja Papamma Rao v. Ramachandra Raju 6 M L J 53 (P C) the decree passed on a simple mortgage did not suggest foreclosure or necessarily anything more than an usufructuary mortgage. The case is explained at page 335 of the Full Bench case in Vedapurathi v. Vallabha Valiya Rajah 12 MLJ 128. It again is no authority in favour of the respondent. In Faiyas Hussain Khan v. Bah Narain ILR (1907) A 33917 M L J 263 (P C) the first decree was in favour of the mortgagee for sale, and he had also got an order absolute for sale, and the plaintiff had in execution become the auction-purchaser.The second suit was by the auction-purchaser (defendant) in a suit on a second mortgage to redeem, the plaintiff's purchase being subsequent to the defendant's. It was held that the defendant could not resist the plaintiff's claim to possession. Incidentally it was laid down that an auction purchaser on foot of a second mortgage could have and ought to have redeemed before the sale under the first mortgage decree was confirmed and that his subsequent application to redeem was properly refused. There is nothing in any of these cases which runs counter to the general principles laid down in Vedapurathi v. Vallabha Valiya Rajah 12ML J 128. In Sukhi v. Ghulam Safdar Khan 4 M L J 15 (P C) a prior mortgagee had obtained a decree for sale without joining a puisne mortgagee and the latter sued, and it was argued that the prior mortgagee could not use his mortgage as a shield, because the mortgage was merged in the decree for sale and was, therefore, extinguished. The Privy Council held that under the altered wording of the Transfer of Property Act and the Civil Procedure Code the mortgage was not extinguished and could be held up as a shield. I do not consider that this ruling is authority for the proposition that, when a mortgagee has obtained a decree for sale, the mortgage as between himself and his mortgagor and all parties to the suit is not merged in the decree in the suit. The decision merely declares that by the decree the security is not extinguished so far as to prevent the agitation of rights under it which were not decided by the decree. It does not touch the question agitating afresh rights already concluded by the decree.
12. The plaintiff's mortgage in the present case is pendete lite and his rights are, therefore, no higher than the rights of the mortgagor, and, as I have already said, the rights of redemption as between the mortgagor and the mortgagee have been once for all merged in the decree in the suit for sale. The principle involved is that in all suits on mortgage which are successful the mortgage, so far as parties to the suit are concerned, is merged in the decree and the mortgagor's rights are only exercisable under the decree and do not exist any longer outside the decree. The right to redeem, therefore, can be exercised only as provided under the decree and not outside the decree. It follows then that, after a decree in a mortgage suit, whatever the form of that decree, whether for foreclosure, sale or redemption, the parties to the mortgage and to the suit and their legal representatives or assignees cannot maintain in future any separate suit or any claim arising out of the mortgage see Ameenammal v. Meenakshi (1920) 12 LW 173. The proper test, I think, is, does the decree provide for every relief obtainable by the parties under the mortgage and leave none unprovided for? It appears to me that it does. It may be noted that the form of final decree, Form 10-A of Schedule I-D is the same in a suit for sale as in a suit for redemption, in the case of a simple or usufructuary mortgage when payment has not been made, and that sub-clause (3) in Order 34, Rule 8 does not apply to sub-clause (4). In the case of a final decree for redemption under a simple or usufructuary mortgage it cannot be doubted that the right to redeem ceases with the passing of the decree. Why should it be deemed otherwise in the case of a final decree of exactly the same wording in a suit for sale?
13. The learned Judge from whose judgment this appeal is preferred has distinguished the case of Ranga Aiyangar V. Narayanachariar ILR (1915) M 896 by saying that, if the Judges there had been dealing with a decree unexecutable by a mortgagor, the decision would have been different. I do not think it follows. Under a preliminary decree it is as open to the mortgagor as to the mortgagee to obtain the final decree and the fact that the former's neglect results in a final decree which is not executable by him cannot resuscitate the right to redeem which is gone. When the learned Judge holds that the right of the mortgagor to redeem property has not been taken away upon the passing of the final decree for sale, I must, for reasons I have already given, with respect differ from him. The learned Judge relies mainly on Ramp, v. Bandhari Nath (1918) ILR 43 Bom 334 (FB) which lays down that the right to redeem is not a matter in issue in a suit for sale. I have already given my opinion that, if the right to redeem can be foreclosed, as it can, in such a suit, it is very difficult to hold that it is not a matter in issue in the suit. I must, for reasons given above, hold that the learned Judge's decree should be reversed. I would reverse it and restore the decree of the Lower Appellate Court with costs to the defendant throughout.
Madhavan Nair, J.
14. The defendant-appellant as usufructuary mortgagee with a personal covenant to pay sued in O.S. No. 430 of 1912 for the sale of the suit properties. A preliminary decree was passed in his favour on the 14th of October, 1913, in which time was fixed for payment till the 14th of November, 1914. A final decree was passed on the 25th of February, 1915. While this suit was pending, the mortgagor gave another mortgage of these properties to the plaintiff's father. In O.S. No. 289 of 1918 the plaintiff respondent obtained a decree for sale without making the defendant a party to the suit and purchased the property himself. He then instituted the present suit for the redemption of the mortgage in favour of the defendant.
15. The question for decision is whether the decree in O.S. No. 430 of 1912 operates as res judicata in the plaintiff-respondent's suit for redemption. Devadoss, J., reversing the concurrent judgments of the Lower Court, rejected the plea of res judicata and remanded the suit for disposal. This decision is the subject-matter of the Letters Patent Appeal.
16. In my opinion, this case must be decided by applying the principle of the decision in Vedapurathi v. Vallabha Valiya Rajah ILR (19021) M 300 12 M L J 138. In that case a Full Bench of this Court held that, where a suit for redemption has been instituted and a decree for redemption had been passed therein but not executed, a subsequent suit is not maintainable for the redemption of the same mortgage. It is no doubt true that in the present case the decree in the prior suit was one for the sale of the properties and not for redemption; but if we have regard to the real nature of the decree for sale passed under Sections 88 and 89 of the Transfer of Property Act, it will be found that this difference does not really make the decision inapplicable. It is not denied that the decree in O.S. No. 430 of 1912 gave the mortgagor who was the defendant in that suit a right to obtain possession of the suit property by paying the decree amount within the time fixed by the Court. In Vedapurathi v. Vallabha Valiya Rajah ILR (19021) M 300 Sir Bhashyam Aiyangar, J. states thus:
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.'....'Decrees for specific performance, decrees respecting rights of easements and similar decrees are often made conditional, but they are none the less 'final judgments' having the force of res judicata. ' The learned Chief Justice said, ' 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 no is the mortgagor entitled to the decree which, if he succeeds, the Court is required by Section 92 to make?' The same matter is in issue in a mortgagee's suit for sale. The form of the decree shows that it contains a conditional decree for redemption. The right to redeem having been thus once adjudicated, the decision in which it was so done must operate as res juidicata in a subsequent suit for redemption. It is true that even after the order absolute for sale under Section 89, it is open to the mortgagor to pay up the mortgage amount and thus aver the sale see Adipuranam Pillai v. Gopalaswami Mudali ILR (1908) M 354 : 18 M L J 259; but this does not mean that the right to redeem still survives. The payment is made by the mortgagor not under the Transfer of Property Act but in the capacity of a judgment-debtor under the provisions of the Code of Civil Procedure. The substantial right involved in the suit, viz., the right to redemption being thus merged in the decree, though the decree is one for sale, the same right cannot again be put in issue in another suit. Applying the principle of the decision in Vedapurathi v. Vallabha Valiya Rajah ILR (1902) M 300 it was held by Sadasiva Aiyar and Napier, JJ. in Ranga Aiyanagar v. Narayanachariar ILR (19151) M 896 that a subsequent suit instituted by the mortgagor for redemption of the mortgage was barred by res judicata by the decision in a prior suit for sale instituted by the mortgagee in which a decree had been passed containing a direction in favour of the mortgagor who was a defendant therein for recovery of possession of the property and which decree was not executed by either party.
17. The learned vakil for the respondent argues that the decision in Vedapurathi v. Vallabha Valiya Rajah ILR (1903) M 300 is inapplicable to the present case, also because of the alteration in the law regarding the nature of the decree to be passed in mortgage suits for sale of properties introduced by Order 34, Rules 4 and 3 which repealed Sections 88 and 89 of the Transfer of Property Act. By the repeal of the old sections of the Transfer of Property Act there are now two decrees in all mortgage suits the preliminary decree and the final decree. The preliminary decree cannot be executed, the executable decree being the final one. It is argued by Mr. Venkatachariar that, since under the Code of 1908, the preliminary decree is now inexecutable. all that is stated in Vedapurathi v. Vallabha Valiya Rajah ILR (1903) M 300 : 12 MLJ 128 with reference to the operative character of such decrees become inapplicable to cases arising under the present Code. He also argues that since by the omission in Order 34, Rule 5 of the words 'and thereupon the defendant's rights to redeem and the security shall both be extinguished' which occurred at the end of the old Section 89, the relationship of the mortgagor and the mortgagee still subsits in spite of the final decree, it is open to the mortgagor to institute a second suit for redemption.
18. In my view, the non-executability of the decree and the alleged continuance of the relationship of the mortgagor and the mortgagee even after the passing of the final decree do not affect the application of the principle of the decision in Vedapurathi v. Vallabha Valiya Rajah ILR (1903) M 300 to the facts of the present case. The question that we have to decide is purely one of res judicata. A properly framed preliminary decree contains a direction enabling the mortgagor-defendant to pay the money declared to be due on the mortgage to the mortgagee within the prescribed period in which event the mortgagee shall deliver the property to the mortgagor. By paying the amount prescribed in the preliminary decree it is open to the mortgagor to obtain a final decree. Since he did not do so in the present case, the right of redem-tion which has become merged in the decree cannot be re-opened again in a subsequent suit. It may be observed that the learned Chief Justice in Vedapurathi v. Vallabha Valiya Rajah ILR (1903) M 300 : 12 MLJ 128 did not rest his judgment on the executability of the decree for he had on the same day delivered judgment in another Full Bench case see Mallikarjunadu Setti v. Linga-murthi Pantulu ILR (1900) M 244 : 12 M L J 279 (F B) in which he held that an order passed upon an application made under Section 89 of the Transfer of Property Act corresponding to Order 34, Rule 5 of Act V of 1908 was not an order made in execution proceedings. Sir Bash-yam Aiyangar also bases his judgment on principles of res judicata embodied in Section 11 of the Code of Civil Procedure though as a supplemental ground, the learned Judge states that the second suit is barred by the provisions of Section 244 also inasmuch as the applications under Sections 89 and 93 were applications in execution. As regards the continuance of the relationship of the mortgagor and the mortgagee, it cannot be said, as has already been pointed out, that the payment which the mortgagor-defendant is entitled to make to avert the sale is made by him as a mortgagor. He pays only in the capacity of a judgment-debtor under the provisions of the Code of Civil Procedure. Whether on making such payment he is entitled to be put in possession of the property is a doubtful question which it is not necessary to decide in this case though the case in Adipuranam Filial v. Gopalaswami Mudali ILR(1918) 43 Bom 334 decides that he is so entitled.
19. In the course of his arguments, Mr. Venkatachariar referred particularly to three decisions, namely, Hari Ravji Chiplunkar v. Shapurji Hormasji Shet (1886) ILR 10 Bom 461 (PC) , Raja Papamma Rao v. Ramachandra Raju (1896) T L R 19 M 249 and Gokaldas v. Kriparam (1873) 13 BR 205 (PC) in support of his contention that the second suit for redemption would lie. The first two cases have been explained by Sir V. Bhashyam Aiyangar, J. in Vedapurathi v. Vallabha Valiya Rajah 18 M L J 259. In Hari Ravji Chiplunkar v. Shapurji Hormasji Shet (1886) ILR 10 Bom 461 (P C), their Lordships of the Privy Council, though they cite the decision in Periandi v. Angappa I LR (1884) M 423 do not express any opinion on the question whether the plaintiff could fall back upon the original mortgage and the case therefore does not afford any help in answering the question whether a subsequent suit on the same mortgage is barred by Section 11 of the Code. The decision in Raja Papamma Rao v. Ramachandra Raju (1896) T L R 19 M 249 : 6 M L J 53 (PC) really depended on the construction of the prior decree passed on the mortgage which contained the condition that 'If the debt is not discharged according to the instalments, you should recover the same by means of the mortgaged property, the crops of our cultivation and our other property and from our person according to your wish.' The learned Judge's held that the prior decree in effect put the mortgagee in the position of the usufructuary mortgagee and therefore the mortgagee could be redeemed by a fresh suit. The decision in Gokuldas v. Kriparam (1873) 13 B L R 205 (PC) is also based on the construction of the prior decree passed in the case under which the mortgagee got into possession. It was held that as that decree did not extinguish the mortgagor's right of redemption, a suit by him for that purpose was not barred.
20. The decision in Ramp v. Pandharinath (1918) ILR 43 Bom 334 (FB) took the view that a second suit for redemption would lie. Mr. Justice Devadoss has in effect followed that decision. The view of our own High Court in Vedapurathi v. Vallabha Vahya Rajah 12 M L J 138 is different from that of the Bombay High Court Mr. Venkatachariar has not been able to persuade me that the decision in Vedapurathi v. Vallabha Valiya Rajah 12 M L J 138 does not lay down the correct law. I do not think it is necessary to discuss the various other decisions referred to by him in the course of the argument, as they do not in my view directly bear on the question under consideration. In my opinion, the plaintiff's suit is barred by the operation of the doctrine of res judkata. I would therefore set aside the decision of the learned Judge and dismiss the plaintiff's suit with costs throughout.