1. Plaintiff, as purchaser of the equity of redemption of a certain village, sued to redeem on payment of the mortgage money.
2. Various objections were raised by the contesting defendants, but they were disallowed by the Subordinate Judge, who gave plaintiff a decree for redemption. Against this decree the first, sixth, fifth, and fourth defendants separately appeal in Appeal Suits Nos. 75, 92, 145 and 146 of 1896. The plaintiff also appeals (Appeal Suit No. 62) against a small part of the decree.
3. The facts, out of which the litigation has arisen, are complicated, but they are fully stated in paragraph 1 of the Subordinate Judge's judgment and need not be repeated here.
4. The main appeal is that of the first defendant. His chief contention before us is that the only remedy of the mortgagor, or of the plaintiff, as assignee of the equity of redemption, was to have executed the decree in Appeal Suit No. 98 of 1880, and that, as execution of that decree is now barred, he has lost the right to redeem and cannot fall back on the original mortgages (A, B, C and E) and sue to redeem them. He contends that those mortgages are merged in the decree in Appeal Suit No. 98 of 1880. He further contends that, as the plaintiff in the present suit claims to redeem on payment of the sum of Rs. 1,339-7-3, which was the sum found to be due to first defendant up to 1st July 1892 on the basis of that decree, the suit is really one based on that decree not on the prior mortgages and that it is therefore not sustainable. He relies on the decision of the Privy Council in the case reported as Hari Ravji Chipunkar v. Chapurji Hormasji Shet I.L.R. 10 Bom. 461.
5. We do not think that these contentions are valid, or that the case is in point By the decree in Appeal Suit No. 98 of 1880 the fourth defendant was to recover the mortgaged property provided he discharged the mortgage, but there was no foreclosure clause in the decree. It is a well settled rule of law in this Presidency that such a decree does not of itself operate to foreclose the right of redemption Sami v. Somasundara I.L.R. 6 Mad. 119 Periandi v. Angappa I.L.R. 7 Mad. 423 Karuthasami v. Jaganatha I.L.R. 8 Mad. 478 and Ramunni v. Brahma Dattan I.L.R. 15 Mad. 366 nor does it alter the previously existing legal relation of mortgagor and mortgagee. If the decree-holder fails to exercise the right of redemption given to him by the decree, he, in effect, declines to put an end to the relation, and in time his right to execute the decree becomes barred, but the legal relation of mortgagor and mortgagee continues; and the mortgagor may, in a fresh suit, again assert his right to redeem on payment of such sum as may then be due, which sum may, on taking an account, he greater or less than the sum which was requisite under the former decree. There is nothing in the Privy Council case of Hari Ravji Chipiunkar v. Chapurji Hormasji Shet I.L.R. 10 Bom. 461 to overrule the established course of decisions in this Presidency. In that case the plaintiff deliberately brought his suit, not on the prior mortgage, but 'on the new basis ' of the decree in which he declared that the prior transactions had 'merged,' and the date of the cause of action was stated to be that of the decree. That decree was in accordance with an award of arbitrators, and that was, no doubt, the reason why the plaintiff was particular to base his suit on the decree not on the mortgages. In fact, as their Lordships remark, ' he treated the decree as the mortgage ' which he sought to redeem ' and they therefore held that he could not in the course of the appeal fall back on the prior mortgage since that ' would be making a different case from that which he made in the lower Courts, and on which the case had been tried and decided.' In the present case it is not suggested that the plaintiff's case in appeal is not that set up in the lower Court. His suit was, and is, to redeem the prior mortgages, and this he is undoubtedly entitled to do in accordance with the settled course of decisions in this Presidency. Their Lordships refer to the Madras rule without disapproval, merely remarking that the plaintiff could not take advantage of it owing to the form in which his suit had been framed and put forward in the lower Courts. In the present case the plaintiff no doubt proposed to pay and deposited in Court Rs. 1,339-7-3, the sum due up to July 1892 on the basis of that decree, but he added that he was ' ready and willing to pay such further or other sum as may be found payable to the first defendant.' The Subordinate Judge, finding that the order (of the District Court on Civil Miscellaneous Petition No. 107 of 1892, which fixed the sum at Rs. 1,339-7-3) had been set aside by the High Court (Civil Miscellaneous Appeal No. 58 of 1893), gave no effect to it. The decree, however, in Appeal Suit No. 98 of 1880 (in execution of which that order had been made), had never been set aside, and the decision in that suit was held by the Subordinate Judge to be a binding adjudication between the parties as to the matters then properly in issue and finally decided between them. In that suit there was a contest as to the validity of the mortgages (A, B, C and E) now sued on, and the binding character of the debts, and, after due enquiry, it was found that only portions of the mortgages were valid and binding on the zamindari. The Subordinate Judge adopted those findings as res judicata, and directed that the mortgage money now due should be calculated accordingly. The first defendant objects to this course, and pleads that if the plaintiff now sues not on that decree, but on the original mortgages, the findings in that suit should be wholly ignored, and there should be an enquiry and decision denovo as to the validity and binding character of the mortgage debts. The reason for his urging this is that some of the debts which were then held to be not binding on the zamindari would now, under the law as subsequently explained by the Privy Council in Sartaj Kuari v. Deoraj Kuari I.L.R. 10 All. 272 be held to be binding; but we agree with the Subordinate,]udge that a, change in the law or a different interpretation of it by the appellate authorities cannot operate to re-open matters which had previously become res judicata. The former suit, though originally framed as a suit in ejectment, was treated as a suit to redeem the mortgages and was essentially such, as shown by the Subordinate Judge in paragraphs 11 to 13 of his judgment. The issues in that suit were:
(1) In what sum was fourth defendant's father indebted to first defendant's father and what portion if any remains due?
(2) To what extent, if at all, is the estate liable for the sum so remaining due?
6. It would be contrary to all principle to ignore the findings then arrived at finally between the parties by the decision of the High Court. We think, therefore, that the Subordinate Judge was right in accepting that decision not only as declaring the legal relation between the parties, but also as determining on what conditions redemption should be decreed, and the principles on which the accounts should be taken on foot of the mortgages and the sum due thereunder up to the date of that decree.
7. It remains to briefly notice some minor contentions of the first defendant.
8. It is contended that, as the plaintiff purchased only seven-eighths of the equity of redemption, he cannot sue for redemption without giving the owner of the remaining one-eighth the option of joining as plaintiff. The plaintiff sues to redeem the whole mortgage, and he is entitled to do so under Sections 91 and 95, Transfer of Property Act. By so doing, he puts himself in the place of the mortgagee redeemed, and may himself be redeemed by his co-mortgagor in respect of the proportionate share Asansab Ravuthan v. Vamana Rau I.L.R. 2 Mad. 223 and Moidm v. Octhumanganni I.L.R. 11 Mad. 416. In the present case we may add that neither in the lower Court nor before us did the second and third defendants, who hold the remaining one-eighth share, apply to be joined as plaintiffs. For both reasons the objection fails. Lastly, it is contended that the steps taken by the plaintiff with a view to appeal to the Privy Council against the order in Civil Miscellaneous Appeal No. 58 of 1893 constitute a bar to the present suit under Section 12 of the Civil Procedure Code. This plea is invalid for the reasons stated by the Subordinate Judge in paragraph 9 of his judgment.
9. We have now dealt with all the matters urged before us in these appeals. The result is that we confirm the decree of the Subordinate Judge and dismiss these appeals with costs.