1. Defendant 2 appeals against an order of remand of a suit made by the Additional Subordinate Judge of Bezwada. Designating the parties as they stand in the present suit, the few facts which have to be known are these. Defendant 2 obtained a mortgage decree against defendant 1, and in the Court sale defendant 3, it is said benami for the second, bought defendant 1's property. There then ensued. an arrangement between the three defendants and the plaintiff who appears to have been a creditor of the judgment-debtor in that suit, according to which defendant 1 executed a mortgage to the plaintiff for Rs. 400 of the property which had already been sold by the Court, and the auction purchaser, defendant 3, undertook to get the Court sale, set aside. He failed to do this, so that, as matters stood, the mortgage bond passed no legal title to the plaintiff. In these circumstances the plaintiff sued in O.S. No. 368 of 1920 for the recovery of the mortgage amount which the defendants had received from him, by the sale if necessary of the mortgaged property. The District Munsif who tried the suit gave him a decree which merely declared his mortgage right over the property and left him at liberty to enforce his-right in a separate suit. He accordingly filed another suit, O.S. 88 of 1925,. against the same three defendants to enforce this right. The District Munsif found that this suit was barred both by res judicata and under Order 2, Rule 2, Civil P. C. In the judgment appealed against, the learned Additional Subordinate Judge differs from this view, holding that the former suit was not one for the recovery of the money paid by sale of the hypo-theca but was a suit for damages for breach of contract. He considered that the two suits were based upon different causes of action. He accordingly restored the suit and remanded it for trial upon the other issues framed.
2. So far as the decree in O.S. 368 of 1920 declares the plaintiff at liberty to enforce his charge by a separata suit, it is, as the learned District Munsif has held, a nullity. There is ample authority: see for instance Sukh Lal v. Bikhi 11All.187 and Fateh Singh v. Jagannath Baksh , that except where such a power is conferred by law, as for example under Order 23, Rule 1, Civil P. C., a Court is not competent to give a party leave to file a separate suit in respect of any relief which it does not itself grant. The plaintiff cannot therefore rely upon this term in the decree to save his suit if it is otherwise barred.
3. The learned Subordinate Judge considers, as I have said, that the earlier suit was for damages, but in this view I am unable to concur. The first nine paragraphs of the plaint recount the facts. In para. 10 it is stated that
the plaintiff is entitled to recover from the defendants the amount of Rs. 400 received by the defendants from the plaintiff
the reason given being that
defendants have fraudulently defeated the object of the contract entered into by them.
4. It is added that
as the defendants have received money from the plaintiff on the liability of the suit properties by giving assurance to the plaintiff, he is entitled to recover the suit amount by the sale of the scheduled properties.
5. In para. 12 the cause of action is stated to have arisen on 21st December 1918, which was the date of the mortgage and of the alleged oral agreement, and 23rd July 1920 the date upon which the sale was confirmed.
6. The relief which the plaintiff prayed for was a direction to the defendants to pay the plaintiff the suit amount and as they had received the suit amount on the liability of the scheduled properties, in default of payment to order the sale of the properties; a declaration that the Court sale is not binding on the plaintiff was also asked for.
7. The District Munsif who tried the suit described it as
a suit to recover money from the defendants after establishing the plaintiff's right to a charge upon the plaint properties.
8. The only issue requiring specific notice was the third which ran thus:
Is the plaintiff entitled to any charge on the plaint scheduled land by virtue of the mortgage executed by defendant 3 pursuant to the agreement alleged in para. 5 as urged by the plaintiff?
9. The District Munsif found the alleged agreement true and continued thus:
I therefore find consequentially that the plaintiff is entitled to a decree establishing his mortgage right over the plaint scheduled properties by virtue of Ex. O (the mortgage bond);, as against defendants 1, 2 and 3.
10. From these quotations from the record it appears to me clear that what the plaintiff sued for was the amount advanced by him under the mortgage. for an order to the defendants to pay it, and in default of such payment its recovery by sale of the mortgaged property; and that the suit was tried upon this footing. There is no reference to damages in the plaint or in the judgment, and it is quite clear I think that in no suit for damages could any question.' of the sale of the mortgaged property arise. The position adopted seems to be that; taking the mortgage together with the agreement, the Court should find the mortgage enforceable because the parties to the agreement must in equity beheld to have performed it. That seems to me to be the only view compatible with the terms of issue 3 and with the finding of the Court that the plaintiff had a mortgage right over the property. Instead of merely making this declaration and referring the plaintiff to a separate suit the District Munsif should then I think have proceeded to grant him a mortgage decree, I am not clear what obstacle he saw to such a course. All the facts had been pleaded and the issue framed. Mr. Dakshmanna draw my attention to the fact that the interest claimed in the plaint was not at the mortgage rate of Re. 1-2-0, but only at 12 annas per cent per mensem and he asks me to infer from this that the suit was not on the mortgage. Whatever may have led the plaintiff to claim a different rate, this circumstance by itself cannot alter the nature of his suit, which must depend not only on the contents of the plaint but on the view taken by the parties of the meaning and intention of the plaint, as disclosed by the nature of the trial which ensued upon it. How could the District Munsif have found consequentially that the plaintiff was entitled to a decree establishing, his mortgage right if the Case had been put before him as a claim for damages? What in effect the plaintiff asked for was not damages but the specific performance of the agreement, and the consequential enforcement of his mortgage. I find it very difficult to see therefore how the former suit could have been founded upon a different cause of action and how it did not comprise what was in substance a claim to enforce the mortgage.
11. But I am unable to see that, on this view of the earlier suit, the later suit, is barred. It is not barred under Order 2, Rule 2, Civil P. C, because the plaintiff did not omit to put forward his whole claim, though he may have put it forward in a form which deterred the Court from giving him the full remedy open to him. Nor am I clear that the second suit is barred by res judicata. The first District Munsif did not decide that the mortgage was unenforceable. On the contrary, he declared the plaintiff entitled to a decree establishing his mortgage right. When I asked the learned advocate for the appellant what matter or issue between the parties had been heard and finally decided in the prior suit, he was at a loss for a reply. The most he could say was that it was decided that a mortgage decree could not be given in that suit. I do not think that Expl. (5), Section 11 of the Code is of any help to him, because it is not possible to infer from the terms of the judgment that a mortgage decree wa3, on the merits of the case between the parties, refused. The most that can be inferred is that the suit was, in the view of the District Munsif, wrongly framed for the grant of such relief, and even as to that the opinion expressed is not very decided. The case bears a strong resemblance to a Calcutta case cited to me, ...Ramaharan Bahadur v. Reazuddin 10 Cal.856, There too the Courts which dealt with the earlier suit found themselves unable to come to a decision by reason of errors of form in the frame of the suit. They therefore refrained from deciding a certain point and left it to the plaintiff to bring a fresh suit framed in such a manner that the Court might be able to grant the relief sought. Garth, C. J. says:
It may be that in the former suit both Courts ought, properly speaking, to have insisted on proper issues being raised and to have tried those issues upon the best evidence that the parties could have adduced, but we are not prepared to say that the course adopted by these Courts was ultra vires. They considered rightly or wrongly that they were not in a position to try the main question in the case; and it is clear that the question, which was advisedly left undecided in the former suit, cannot be said to have been heard and finally decided within the meaning of Section 13 (now Section 11) of the Code.
12. So in the present case it may be that the District Munsif ought to have forthwith granted a mortgage decree. But rightly or wrongly he considered himself precluded from the manner in which the suit was brought from doing this. I am unable to see that he thereby decided any such matter as would make it res judicata between the parties, For the appellant I am referred to the Privy Council case, Fateh Singh v. Jagannath Baksh. But the facts there were quite different, the plaintiffs having omitted to plead in their first suit a certain family custom which in their second suit they made the foundation of their claim. It was held that they were barred by res judicata by virtue of Expl. (4). No such circumstance exists in the present case.
13. In the circumstances therefore I am not prepared to say that the issue whether on the facts alleged by the plaintiff he can get a mortgage decree has been heard and finally decided between him and the defendants. The appeal accordingly fails and is dismissed with costs.