Sadasiva Aiyar, J.
1. The plaintiffs are the appellants. The first plaintiff's father, Sreenivasa Aiyangar, mortgaged the plaint properties with possession to the defendants' ancestor, Sreenivasa Chariar in 1864. The othi deed contained also a covenant by the mortgagor to pay the mortgage-money personally. The defendants' ancestor brought a suit against Sreenivasa Aiyangar's sons in 1867 for recovery of the othi amount of Rs. 136 on the charge of the mortgaged property. (The plaint itself was not filed in the records but the suit might be taken as having contained the usual prayers for sale on default and for recovery of the balance, if any, from the defendants therein to the extent of their ancestral properties.) In April 1872, the decree, Exhibit A, was passed, of which the operative portion is as follows: The plaintiffs obtain from the defendants the suit amount and all the costs of the suit, that the othi property be sold in order to satisfy the decree in case the decree amount be not paid within six months from this day, that the plaintiff is entitled to obtain interest on costs at 12 per cent. per annum from this day and that the defendants are entitled to obtain possession of the othi land in execution through Court (* * * *) after satisfying the decree.' This decree, passed in favour of the present defendants' ancestor primarily but in which the present plaintiffs were also granted a right to redeem the property and to obtain the possession of it from the present defendants' ancestor in execution on payment of the amount decreed, was not executed by either of the parties to that decree. The present suit was brought nearly 40 years after the date of the former decree for the redemption of the same mortgage. (The plaintiffs Nos. 1, 2 and 3 in this suit were the defendants Nos. 4, 5 and 6 in the former suit of 1867. The plaintiffs Nos. 4, 5 and 6 in this suit are the sons of the deceased Aravamudu Aiyangar who was the first defendant in the former suit. The 7th plaintiff in this suit is the son of the second defendant in the former suit. 1 shall hereafter for the sake of brevity make no distinction between the plaintiffs and their ancestors or between the defendants and their ancestors.)
2. The sole question in this case is, whether the present suit is barred as res judicata by the decree in the former suit. Both the lower Courts decided the question in the affirmative and hence this second appeal.
3. It seems to me clear that, if in the former suit there was a decree in favour of the present plaintiffs (though they were the defendants in the former suit) and if it was an executable decree and if that decree granted them substantially the same reliefs as they now claim in this suit, they are barred by res judicata from maintaining the suit, and notwithstanding the strenuous and able arguments of Mr. T.M. Krishnaswami Aiyar who appeared for the appellants before us, I have come to the conclusion that the finding of the lower Courts was correct on the question of res judicata.
4. In the first place, I dissent from his contention that the decree, Exhibit A, of 1872 merely declared the present plaintiffs' right to get possession of the properties on payment of the mortgage amount and did not give them any right to obtain possession in execution in that suit. The Tamil word ( * * *) at least in the Tanjore District is always used to mean 'the obtaining of possession in execution through Court' and I think that the decree, Exhibit A, did give the plaintiffs (who were the defendants in the suit of 1867) the right to obtain possession of the mortgaged properties through Court in execution of the provisions of that decree on their payment of the mortgage amount.
5. In order to clear the ground further, it has to be remarked that the decree Exhibit A of 1872 was passed long before the Transfer of Property Act and the present Civil Procedure Code were passed. The decree Exhibit A, as I said before gives the present plaintiffs who were the defendants in that suit, a right to obtain possession of the plaint land through the Court in execution on condition of their satisfying the decree passed in the present defendants (then plaintiffs') favour In V dapuratti v. Vallabha Valiya Raja 25 M.k 800 there occur several dicta in the long and exhaustive judgment of Sir Bhashyam Aiyangar, J. At page 321 he says: whether the decree be in a suit for foreclosure or in a suit for salo 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 easement and similar decrees are often made conditional but they are not the less 'final judgments' having the force of res judicata. This, I venture to state, is equally so under the English Law and all decrees whether conditional or unconditional are to be worked out and enforced in execution.' I entirely and respectfully agree with these observations. No doubt, the learned Judge was referring to decrees for sale and for redemption passed under the Transfer of Property Act, but his observations apply to this decree of 1872 also which contains a conditional decree in favour of the mortgagors for redemption, though it was a mortgagee's suit for sale. In Adipuranam Pillai v. Gopalasami Mudali 18 M.L.J. 259, the following passage occurs at page 360: The reason on which is based the decision of the Full Bench in Vedapuratti v. Vallabha Valiya Raja 12 M.L.J. 128, renders it at least doubtful whether a suit for redemption could be maintained by a mortgagor who has failed as defendant in a suit for sale on the same mortgage.' It seems to me that the doubt so expressed is (if I may say so with respect) a very proper doubt and I think that the reasoning of the decision in Vedapuratti v. Vallabha Valiya Raja 25 M.k 800 does prevent a mortgagor, who as defendant in the mortgagee's decree for sale got a conditional decree for redemption, from afterwards maintaining a suit of his own for redemption and possession of the mortgaged property instead of executing the conditional decree for redemption passed in the first suit. A decree for redemption is almost invariably a conditional decree whether it is passed in a mortgagee's suit for sale or a mortgagor's suit for redemption. No doubt where it is passed in a mortgagee's suit for sale, it is not usually passed on the invitation of the mortgagor (defendant) and in the language used in Adipuranam Pillai v. Gopalasami Mudali 31 M.k 354, the defendant is a decree-holder in spite of himself, an involuntary decree-holder;' but I do not see how this could, on principle, make any difference in the decision of the question whether the mortgagor-defendant who has been given such a decree is entitled only to execute that decree or whether he is entitled to bring a fresh suit for redemption despite the doctrine of res judicata.
6. As I said before, the decree of 1872 is a decree in favour of the mortgagor alto, as it empowers him to recover possession of the property in execution. The Legislature in Act IV of 882 has enacted that decrees passed in mortgage suits, whether brought by the mortgagor or mortgagee, should (if necessary) be made to contain a direction that the mortgagee shall put the mortgagor in possession of the mortgaged property on the mortgagor paying up the amount mentioned in the decree as, due to the mortgagee. [See Sections 86, 88 and 89 of the Transfer of Property Act, now repealed by the Civil Procedure Code which, however, re-enacts very similar provisions in Order XXXIV, Rule 2, Clause (c), Rule 4, Clause 1 and Rule 5, Clause 1((c).] The decree of 1872 contains the same direction. Mr. Krishnaswami Aiyar laid much stress upon what, he argued, was a material difference between the language of Section 60 of Act IV of 1882 which deals with the right of the mortgagor to redeem and the language of Section 67 which refers to the right of the mortgagee to obtain an order for foreclosure or sale. In Section 67, the right of the mortgagee to obtain an order for foreclosure or sale is restricted to the period before a decree has been made for the redemption of the mortgaged property.' These words before a decree has been made for the redemption of the mortgaged property' or the correlative words before a decree has been made for sale of the property' do not appear in Section 60. He, therefore, argued, if I understood him aright, that a decree for sale in a mortgagee's suit, though it may also contain a decree for redemption in favour of the defendant-mortgagor, does not bar a separate suit by the mortgagor for redemption whereas a decree for redemption in a mortgagor's suit will bar a separate suit by the mortgagee for sale afterwards. I do not think that the insertion of the words 'before a decree has been made for redemption of the mortgaged property' in Section 67 and the absence of corresponding words in Section 60 necessarily lead to any such conclusion as is contended for by the learned Vakil. These words had to be inserted in Section 67 in order to indicate that the power given under Section 93 of the Transfer of Property Act to the mortgagee as defendant to apply for sale of the property in a mortgagor's suit for redemption ought to be exercised in the same suit by the defendant mortgagee, if he wants a sale of the property for realising his amount, and that he could not reserve it for a fresh suit as an optional remedy which he might or might not take advantage of in the mortgagor's suit. It will be seen that under Section 93, paragraph 2 [Order XXXIV, Rule 8, Clause (4)] the order for sale at the instance of the mortgagee-defendant is not an order passed as a part of the decree but an order passed on a separate application on the mortgagor (plaintiff) committing default, whereas Section 89 read with Sections 86 and 88 makes the order for redemption in the defendant-mortgagor's favour in the mortgagee's suit for sale a part of the original decree itself. So being made in the latter case a part of the decree itself, it was unnecessary to state in Section 60 that when a decree has been made for redemption or for sale, the mortgagor has no right to again redeem the mortgaged property after the passing of such a decree, as his said right had been adjudicated upon in the suit itself and has become res judicata whether the suit was a suit by the mortgagor for redemption or by the mortgagee for foreclosure or sale.
7. No doubt the case of Rama Tulsa Mahar v. Bhagchand Motiram 16 Bom. L.R. 687 quoted by the appellant's learned Vakil is in his favour. But with the greatest respect, I am unable to agree with that decision. As said in the critical notes on pages 7 and 8 of 29 M.L.J., In the words of Section 11, Civil Procedure Code, has not the matter directly and substantially in issue in the 2nd suit--viz., the plaintiff's right of redemption--been so in issue, and also heard and decided, in the former suit? What new point, right or question has the Court to hear or decide in the second suit? It will be impossible to contend that for the application of the rule of res judicata to suits (as distinguished from 'issues') the persons should on both occasions be arranged alike, whether as plaintiffs or as defendants.' The mortgagor was entitled in the former suit itself (of the mortgagee) to redeem the property not only within six months given in the decree to pay up the decree amount, but he was entitled under the Civil Procedure Code [as decided in Adipuranam Pillai v. Gopalasami Mudali 31 M.k 354] to pay it up, even after the six months and at any time before a sale in execution and so prevent a sale. The Courts need not be solicitous to help a negligent mortgagor at any cost. The fact that the mortgagee has to bring a suit for sale within twelve years of the date when the mortgage money became payable, whereas a mortgagor has got 60 years under Article 148 for his suit for redemption, is not a sufficient or logical ground for allowing the mortgagor to obtain a fresh decree for redemption in his own suit after he had obtained one decree already in the mortgagee's suit for sale.
8. In the result I would dismiss the second appeal with costs.
9. I agree. In Vedapuratti v. Vallabha Valiya Raja 12 M.L.J. 128, the late Chief Justice stated the proposition thus. The matter in issue in a redemption suit is, aye or no. Is the mortgagor entitled to the decree which, if he succeeds, the Court is required under Section 92 to make. In my view the same matter is in issue in a mortgagee's sale suit, whether the suit be under English Law or the Transfer of Property Act and whatever difference in form has been made by the provisions in the new Code. In that view this suit is res judicata and the appeal must be dismissed.