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T.S. Moidheen Pichai Sahib Vs. Nagoore Meera Rewther and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1937Mad799; (1937)2MLJ536
AppellantT.S. Moidheen Pichai Sahib
RespondentNagoore Meera Rewther and ors.
Cases ReferredViroopakshan Nambudripad v. Chembu Nayar
Excerpt:
- - in that suit, the mortgagee as well as the mortgagors, were ex parte......by reason of the decree in o.s. no. 34 of 1921 on the file of this court'. on this issue, the learned judge held that the suit was barred and dismissed the suit.2. in this appeal, the question argued relates to this finding. counsel for the appellant contends that the suit is not barred by reason of that decree. the decision of the lower court is based upon various considerations. one of the main grounds of justification is this, namely, that the cause of action of the mortgagee, the present plaintiff, and of the sub-mortgagee who was the plaintiff in the original suit is one and the same and that the cause of action was exhausted by the previous suit and the decree, and it cannot therefore be agitated again in a subsequent suit. with this opinion we cannot agree. no doubt the.....
Judgment:

Madhavan Nair, J.

1. These are two connected appeals. The plaintiff is the same in the two suits out of which these appeals arise. The first defendant in the two suits are brothers. They had another brother. Each of these three brothers executed a hypothecation bond for Rs. 3,000 in favour of one, Usain Ali Rowther. The hypothecation bonds involved in these two suits are Exhibits A and B--two of the three hypothecation bonds. The mortgagee, Usain Ali, sub-mortgaged his mortgage rights under the three mortgages in favour of the fifth defendant, a Chetti firm under Ex. C. The sub-mortgage was for an amount not exceeding Rs. 9,000 that may be borrowed from the firm. The Chetti firm instituted O.S. No. 34 of 1921, a suit for the sale of the hypothecated properties, in exercise of its rights. The present plaintiff's predecessor, Usain Ali, was the first defendant in the suit, and the mortgagors were defendants 3 and 4. It was found in that suit that the mortgages and sub-mortgages were subsisting, and a decree was passed in favour of the plaintiff therein, for the amount sued for. In that suit, the mortgagee as well as the mortgagors, were ex parte. That decree was not executed by the sub-mortgagee plaintiff and is at present subsisting. The original mortgagee having died, his interests in the two mortgages were assigned over to the present plaintiff, and these two suits have been instituted by him for the recovery of his mortgage amount. Various issues were raised in the case. One of the issues was ' whether the suit is barred by reason of the decree in O.S. No. 34 of 1921 on the file of this Court'. On this issue, the learned Judge held that the suit was barred and dismissed the suit.

2. In this appeal, the question argued relates to this finding. Counsel for the appellant contends that the suit is not barred by reason of that decree. The decision of the lower Court is based upon various considerations. One of the main grounds of justification is this, namely, that the cause of action of the mortgagee, the present plaintiff, and of the sub-mortgagee who was the plaintiff in the original suit is one and the same and that the cause of action was exhausted by the previous suit and the decree, and it cannot therefore be agitated again in a subsequent suit. With this opinion we cannot agree. No doubt the sub-mortgage is an assignment of the mortgage, but in this case it must be observed that the mortgages amounted to Rs. 9,000, and what was sub-mortgaged was only a sum up to Rs. 9,000 and the exact amount involved in the previous suit, O.S. No. 34 of 1921, was only Rs. 958. So, on the facts, it is clear that there is no complete assignment of the cause of action of the mortgagee in favour of the sub-mortgagee. Apart from this, as we have said, it is clear that the causes of action of the two suits are different. (See Muthukrishnien v. Viraraghava Iyer : (1912)23MLJ430 .) The learned Judge after referring to the decision in Muthu Vijia Raghunatha Ramachandra Vacha Mahali Thurai v. Venkatachallam Chetti (1896) 6 M.L.J. 235: I.L.R. 20 Mad. 35 which says that the sub-mortgagee can bring a suit for the sale of the mortgaged property, says that:

Muthu Vijia Raghunatha Ramachandra Vacha Mahali Thurai v. Venkatachallam Chetti (1896) 6 M.L.J. 235: I.L.R. 20 Mad. 35 did not decide that a sub-mortgagee could sue to recover the debt due to his mortgagor, but only that the sub-mortgagee could in suing to recover his own debt bring to sale the properties mortgaged to his mortgagor instead of merely bringing to sale his mortgagor's interest. His interest in what was mortgaged to his mortgagor was held sufficient to entitle him to sell what was mortgaged to his mortgagor. It would be going a great deal further to hold that the sub-mortgagee could sue on the cause of action open to his mortgagor to recover the debt due to the latter.

3. In the present case, it is clear that the sub-mortgagee's claim being only for Rs. 3,400 and odd could never have sued on the cause of action open to his mortgagor which was to recover a sum of Rs. 9,000. So, the main ground relied on by the learned Judge does not apply. In this connection, it may also be pointed out that the learned Judge says, just as the second suit for redemption is held barred, a second suit for sale should also be held to be barred. But recently the Privy Council has held in Raghunath Singh v. Hansraj Kunivar (1934) 67 M.L.J. 813: L.R. 61 IndAp 362 : I.L.R. 56 All. 561 (P.C) that a second suit for redemption does lie. (See also Viroopakshan Nambudripad v. Chembu Nayar) : (1937)1MLJ83 So, that parity of reasoning also cannot apply. It was then pointed out by the learned Judge that the decree passed in the previous suit is a bar to the present suit. Ex. III provided only for the payment to the sub-mortgagee of the amount due to him and for the sale of the mortgaged property and for the sale proceeds being applied towards the discharge of the sub-mortgage and the balance to be paid to the mortgagee. The decree as it stands does not make any provision for the realisation of the amount due to the original mortgagee. The decree therefore in the form in which it stands does not preclude the original mortgagee from asserting his rights; Form No. 11 has been referred to by the learned Judge in this connection to show that in a properly framed decree in a suit by the sub-mortgagee, the mortgagee's right to institute a subsequent suit is taken away. But Form No. 11 provides for a decree in a suit brought by the submortgagee. That decree does not give a mortgagee a right to sell. It gives him a right to pay off the sub-mortgagee, but it does not give him a right to sell the property and to recover his dues. No doubt the amount which he is entitled to will be ascertained, but there is no means to bring the property to sale. So the provisions of the decree cannot stand in the way of assertion of his rights by the mortgagee in a subsequent suit. The result of the learned Judge's finding is that the mortgagee will have to lose all his rights because the submortgagee does not execute the decree in his present suit. That cannot be right, and we do not think that there is any prohibition in law against the mortgagee afterwards instituting a suit in the assertion of his cause of action which as we have held is separate from that of the sub-mortgagee. In our opinion the suit is maintainable.

4. Another question raised was ' whether the suit document has been discharged in the manner alleged by the first defendant '. In view of the Judge's finding that the suit was not maintainable, a decision on this point was unnecessary. But still the learned Judge on an application made by the defendant in I.A. No. 181 of 1930 has given a decision that it cannot be said that the defendants are in any way barred from raising the plea of discharge. We do not express any opinion on this decision as the learned Judge, having regard to his decision under Issue 2, cannot obviously have considered it with all the fullness it deserves, and as pointed out by the learned Counsel for the appellant, a correct decision on this point would depend also on certain facts which are raised in the pleas of the defendants which have not been dealt with in the learned Judge's discussion of the question. In these circumstances, it will be open to the lower Court to consider this issue also in deciding the case along with the other issues. As we have held that the suit is maintainable, we remand the two suits to the lower Court for disposal according to law.

5. Court-fee in these appeals will be refunded. The appellant is entitled to his costs, but he will get the same only in one appeal, namely, in Appeal No. 42 of 1931.


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