Ramachandra Iyer, J.
1. This is an appeal against the order of remand passed by the learned Subordinate Judge of Nagarcoil in A. S. No. 846 of 1957, the substantial question involved in this appeal being the propriety of a conversion of a suit instituted for ejectment into one for redemption.
2. One Kuzhikattu Madam, which shall hereafter be referred to as the Madam, was the owner of an extent of 4-60 acres of land in the village of Veinbanur in the Nagarcoil taluk. Before the survey, the land was designated as bearing No. 96 which in vernacular was called 'Lakkam 96'. Under the survey the land was described by two numbers, 4308 and 4309. No. 4308 was in the north covering an extent of about 3.55 acres and 4309 was in the southeast covering an extent of 1.05 acres. In 1868 M. E. 1043 the Madam mortgaged an extent of 1.05 acres situate southeast of Lakkam, 96 to one Sivanadian. The mortgage was followed by another similar transaction between the same parties about 16 years later.
About 1899, the mortgagee assigned his mortgage rights to one Azhakiyanayagam, who in 1931, sub-mortgaged it to the first respondent, Meenakashi Animal (plaintiff). The submortgagee instituted O. S. No. 106 of 1107 M. E. for realising the amount due on the mortgage. It is now admitted that the mortgagor, namely, the Madam was not a party to the suit. A mortgage decree followed as a result of which there was a sale and Bhagavati Ammal, the first defendant in the suit, purchased the properties in court auction. The appellant who is the second defendant in the suit subsequently acquired title to those properties by a transfer from the purchaser.
3. In the meanwhile the mortgagor, Madam, filed a suit for redemption of the mortgage, O. S. No. 109 of 1111/M.E. In the suit the mortgaged property was referred to as Survey No. 4308. A final decree was passed in the redemption suit. Meenakshi Animal, the appellant, purchased from the Madam its equity of redemption in No. 4309 by a sale deed dated 8-5-1940. After purchasing the property the appellant filed an application for amendment of the final decree in O. S. No. 106 of 1107 M. E. praying that S. No. 4309 might be substituted for No. 4308 mentioned in the decree.
The object of the amendment is not difficult to discover. The attempt was obviously to redeem 4309 which the appellant had purchased from the Madam on 8-5-1940. But the application ior amendment did not succeed. It was dismissed. She thereupon instituted the suit out of which the present appeal arises for recovery of possession of No. 4309. The parties to that suit were the first defendant, Uhagavati Ammal, and the second defendant, the appellant Subbiah Nadar, who derived title under the purchase in the sub-mortgagee's suit O. S. No. 106 of 1107 M. E.
4. The defence to the suit was that in the court auction held in O. S. No. 100 of 1107 M.E. the purchaser, namely, the first defendant obtained full title to the property sold, and that as the mortgagor's rights in the property had been extinguished by such sale there would be no power for the latter to convey under the document dated 8-5-1940 any title in respect of the suit property. There were also other pleas regarding the improvements etc., which it is now unnecessary to consider.
5. The learned District Munsif held that the second defendant became the full owner of the property by virtue of bis purchase from Meenakshi Ammal who in turn purchased in the court auction in O. S. No. 106 of 1107. He held further that in view of tile order passed on the application for amendment filed in O. S. No. 109 of 1111 the claim of the appellant should be held to be barred by res judicata. It was also held that the plaintiff not being in possession with 12 years the suit was barred by limitation as well. On those findings the District Munsif dismissed the suit.
6. The first respondent thereupon took the matter in appeal. The learned Subordinate Judge held that what the first defendant obtained in the court sale in O. S. No. 106 of 1107 was only the mortgagor's rights which Azbakianayagam possessed and not a right to the mortgaged property as such; that the property mortgaged to Azhakianayagam was not 4308 but 4309 the evidence in the case having established the fact that 4308 mentioned in those proceedings was an error.
In view of the finding that the 2nd defendant-appellant was in possession only as a mortgagee no question of the application of Article 142 would arise. But the learned Judge held that the remedy of the first respondent lay in filing a suit for redemption and not merely one for possession as the former was in the position of a mortgagor by virtue of the purchase dated 8-5-1940, and as the first respondent represented the mortgagee. In that view he allowed an amendment of the plaint sought by the first respondent by converting the suit from one for possession into one for redemption. The 2nd defendant has filed this appeal against the above order of remand.
7. Mr. K. S. Sankara Iyer, the learned counsel for the appellant, raised before me a number of contentions. First he contended that the conclusion of the learned Subordinate Judge that S. No. 4308 in the mortgage to Azhagianayagam was a mistake for 4309 was wrong. I cannot however agree with him. The learned Subordinate Judge has given convincing reasons why he came to the conclusion he did. The question as to what was mortgaged to Azhagianayagam's predecessor in title cannot be decided merely by the number referred to in the subsequent proceedings; the question concerns the identity of the property mortgaged and that sought to be redeemed. That question is one of fact and the learned Subordinate Judge having found in favour of the first respondent that what was mortgaged was only 4309 and not 4308, such finding could not be challenged in this appeal.
8. The learned counsel then contended that the plaintiff would be debarred from claiming redemption as his suit should be held to be barred under Article 134 of the Limitation Act. That provision would apply only if a mortgagee in possession has purported to sell the property as such. But in the present case the mortgagee did not sell, much less purport to sell, the mortgaged property. The properties were sold in court auction at the instance of a sub-mortgagee, the mortgagor not having been made a party.
It has been held by this court that it will be open to a sub-mortgagee either to sue on his mortgage as against his mortgagor (i.e., the principal mortgagee) alone and bring to sale the mortgage right Or that he could by impleading the mortgagor enforce his mortgage by enforcing the main mortgage and bring to sale the mortgaged property as such, It was the former course that was adopted In the present case. Therefore what the court purported, to sell was the right, title and interest of the judgment debtor, namely, Azbaginayagam which was only a mortgagee's right. There is therefore no substance in the contention that Article 134 would apply to the present case.
9. The next contention was that as the first respondent applied for amendment of the decree in O. S. No. 109/1111 and failed in that attempt, the refusal of the relief in those proceedings would constitute res judicata. I am unable to agree with this contention either. Amendment is a matter of discretion and when a court refused to exercise its discretion, it cannot be held that the claim of the petitioner was heard and finally decided.
10. The substantial argument urged on behalf of the appellant related to the propriety of the amendment allowed by the learned Subordinate Judge which necessitated the remand, namely, converting what was originally a suit in ejectment into one for redemption, Mr. Sankara Aiyar contends that the court would have no power to grant such an amendment which will have the effect of converting a suit of one character into a suit of different character.
In support of that contention he relied upon a decision in Chandu v. Kombi. ILR Mad 208. It was held in that case that if a suit was brought in ejectment, and the defendant proved that he held a mortgage, a decree for redemption could not be made unless the latter consented. This decision was followed in Ramaswami pillai v. Vellavya Pillai, 2 Mad LJ 48, where it was held that redemption could not be allowed in a suit for ejectment. It does not however appear from the report whether there was an application for amendment in that case and whether the propriety of the amendment was considered.
In Kokilasari Dasi v. Rudranand Goswami, 5 GLJ 527 it was held that although a suit brought as one for possession might in the discretion of the court, where the circumstances of the case permit be equitably converted into one for redemption, (which could only be allowed when the mortgage is valid and binding one) a plaintiff should ordinarily succeed on the case he had made in the plaint, and unless there were special circumstances, an action instituted for purposes absolutely inconsistent with redemption could not properly be converted into an action to redeem, us it would in reality amount to the conversion of a suit of one character into a suit of another and inconsistent character.
11. In Itadhabai v. Vioeya, ILR 8 Bom 168, an amendment by which a suit for ejectment was converted into one for redemption was allowed. It must be remembered that these cases were decided under the provisions of the Civil Procedure Code, 1882. Section 53 of that Code which corresponds to Order VI, Rule 17 of the present Code provided that
'a plaint shall not be amended so as to convert a suit of one character into a suit of another and inconsistent character.'
Order VI, Rule 17 C. P. C. of the present Code which replaced the former Section 53 is in wider terms and confers a much larger power to the court in the matter of the amendment of pleadings. Under that provision a court could allow all such amendments as might be necessary for the purpose of determining the real questions in controversy between the parties. In Ma Shwe Mya v. Maung Mo Hnaung, ILR Cal 832: AIR 1922 PC 249 , the extent of the power of amendment under Order VI, Rule 17 has been stated by the Privy Council thus
'Ail rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essentia11l that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must foe enjoyed and should always be liberally exercised, but none the less no power has yet been given to enable one extinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suits.'
The question therefore will be whether the cause of action has been changed by a proposed amendment and whether the subject matter of the suit has been changed. In such a case what one should see is not whether the suit of one character has been changed into one of another character, but whether the cause of action and the subject matter of the suit would be changed by the amendment if allowed. Taking the instant case it cannot he denied that the cause of action, namely, the plaintiffs purchase, is the same both for the prayer for ejectment as well as for that for redemption.
The subject matter also is the same, namely, the mortgaged property. This view is in accordance with the recent judgment of this court reported in Thangavelu v. Vadamalai Mudaliar, 1955 1 MLJ 5. In that case the, suit was originally instituted for redemption but was later converted into one for partition and possession. Rajagopala Aiyangar, J. held that the amendment could be allowed. The learned Judge considered the provisions of O. VI, Rule 17 C. P. C, and came to the conclusion that the suit for redemption continued to have the same subject-matter after the amendment into one for partition and possession. I am therefore of opinion, that the learned Subordinate Judge was right when, he allowed the amendment permitting the conversion of the suit for possession into one for redemption.
12. The order of remand passed by Mm cannot be held to he open to any objection. The appeal fails and it is dismissed. There will however be no order as to costs.