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Nakondu Nagasami Iyer Vs. Thirukonda Ellaragan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1925Mad1191
AppellantNakondu Nagasami Iyer
RespondentThirukonda Ellaragan
Cases ReferredFaiyaz Hussain Khan v. Prag Narain
Excerpt:
- .....in this suit they are barred by res judicata from maintaining the suit.' in the present case the final decree in o.s. no. 430 of 1912 was passed on 25th february, 1914. the question is whether the final decree is executable by the mortgagor. if it is an executable decree the ruling in ranga aiyangar v. naryana chariar (1916) 39 mad. 896 would be applicable. if it is not an executable decree the plaintiff's suit would not be barred. in a suit for sale a preliminary decree is passed under order 34, rule 4. the preliminary decree provides among other things for the payment within the time fixed therein of the principal and interest of the mortgage amount together with costs and such other amount as may be found due from the mortgagor to the mortgagee; and that in default of the defendant.....
Judgment:

Devadoss, J.

1. [After stating facts. His Lordship proceeded : - ] Mr. C.S. Venkatachariar for the appellant contended that the plaintiff's suit was not barred by res judicata as there was no executable decree in favour of the mortgagor in O.S. No. 430 of 1912. Both the lower Courts have relied upon the decision in Ranga Aiyangar v. Narayana Chariar (1916) 39 Mad. 896 for the view they took. The facts of that case were : - The first plaintiff's father mortgaged the plaintiff's properties with possession of the defendant's ancestor in 1864. The othi deed also contained a covenant by the mortgagor to pay the mortgage-money personally. The defendant's ancestor brought a suit against the mortgagor's son in 1867 for the recovery of the othi amount and obtained a decree. The operative portion of the decree runs as follows : - 'The plaintiff obtained 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 (vasapaduthi) after satisfying the decree.' The decree was not executed by either of the parties thereto. The mortgagor's representatives brought a fresh suit for redemption of the mortgage (othi). The Court held that a fresh suit by the mortgagor for redemption was barred by the rule of res judicata. Mr. Justice Sadasiva Iyer who delivered the leading judgment in the case relied upon the terms of the decree and held that the decree was executable by the defendants. He relied upon the Tamil word 'vasapaduthi' as meaning the obtaining of possession in execution through Court and that, the mortgagor's representatives, had a right to obtain possession through Court in execution of that decree on payment of the mortgage amount. From the reasoning of the learned Judge it is apparent that if the decree was not an executable one, so far as the mortgagor's representatives were concerned, he would not have held that the suit for redemption was barred; for he says : '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.' In the present case the final decree in O.S. No. 430 of 1912 was passed on 25th February, 1914. The question is whether the final decree is executable by the mortgagor. If it is an executable decree the ruling in Ranga Aiyangar v. Naryana Chariar (1916) 39 Mad. 896 would be applicable. If it is not an executable decree the plaintiff's suit would not be barred. In a suit for sale a preliminary decree is passed under Order 34, Rule 4. The preliminary decree provides among other things for the payment within the time fixed therein of the principal and interest of the mortgage amount together with costs and such other amount as may be found due from the mortgagor to the mortgagee; and that in default of the defendant paying, as therein mentioned, the mortgaged property or a sufficient parte be sold, and the proceeds of the sale be paid into Court and applied in payment of what is declared due to the plaintiff. If the amount is not so paid by the mortgagor after the time fixed in the preliminary decree, the Court passes a decree that the mortgaged property or a sufficient part thereof be sold and that the proceeds of the sale be dealt with as is mentioned in Rule 4. After the passing of the final decree, if the mortgagor could insist upon the plaintiff recovering the amount mentioned in the decree and upon delivery in the case of simple mortgage of documents of title and the re-transfer of the mortgaged property to him and in the case of usufructuary mortgage upon delivery of possession to him, than it might be said that the final decree is an executable one. But the final decree as drawn up under the present Civil P.C. contains no provisions whereby the mortgagor could ask the Court to receive tb.8 money due under the decree and grant him the necessary reliefs.

2. At the end of Section 89 of the Transfer of Property Act there was a clause : 'And thereupon the defendant's right to redeem and the security shall both be extinguished.' And this clause has not been re-enacted in Order 34, Rule 5. The right of the mortgagor to redeem the property has not been taken away upon the passing of the final decree for sale. The mortgagor can pay the decree amount any time before the property is brought to sale and thereby avert the sale : Vide Misri Lal v. Mitthpud Lal (1905) 28 All. 28 Bibijan Bibi v. Sachi Beah (1904) 31 Cal. 863 and Adipuranam Pillai v. Gopalasami Mudali (1908) 31 Mad. 354. Though the mortgagor pan avert the sale by paying the decree amount into Court, the question for decision is whether he can insist upon the Court giving him relief after the final decree has been passed. The final decree itself does not provide for such a course. All that he can do is to avert the sale by paying money into Court. But that does not give him the right to pay the money at any time he likes whether the mortgagee brings the property to sale or not and insist upon the mortgagee receiving the decree amount and re transferring the property to him if it is a simple mortgage and giving him possession of the mortgage property if it is usufructuary mortgage. Mr. Justice Sadasiva Iyer relied upon the Full Bench decision in Vedapurati v. Vallabha Valiya Raja (1902) 25 Mad. 300 for the position that the decree in such eases is a conditional decree in favour of the mortgagor. If there was no final decree but there was only a preliminary deoree, it might be said to be a conditional decree, in favour of the mortgagor. The decree which was held to bar the suit for redemption in Ranga Aiyangar v. Narayana Chariar (1916) 39 Mad. 896 was in the nature of a preliminary decree. It is conceded by Mr. Venkatachariar that in the case of a preliminary decree there is relief given to the mortgagor which he could enforce through Court. The decree of 1872, which was considered to be a bar to the suit for redemption in Ranga Aiyangar v. Narayana Chariar (1916) 39 Mad. 896 was in the nature of a preliminary decree. Before the passing of the present Civil P.C., it was usual for the mofussil Courts to pass one decree that the mortgagor should pay the amount of the decree within a certain date, and on default the property would be sold. Very seldom was a final decree drawn up. The decision in Ranga Aiyangar v. Narayana Chariar (1916) 39 Mad. 896 cannot govern the present case as the decree there was in the nature of a preliminary decree. Mr. Justice Sadasiva Iyer relied upon the observations of Mr. Justice Bhashyam Iyengar in the Full Bench case in Vedapurathi v. Vallabha Valiya Raja (1902) 25 Mad. 300 for the view that the decree in such a case in favour of the mortgagor was a conditional decree. It is unnecessary to canvass the position that a conditional decree was passed in such a case in view of the fact that in this case the decree is the final decree which is different from a preliminary decree. So the expression 'conditional decree' cannot apply to the final decree in which there is no condition imposed upon the mortgagor. But there is only a direction that the property or a sufficient portion thereof shall be sold and the proceeds shall be dealt with as mentioned in Rule 4. In this connexion it would be helpful to compare Rules 3 and 8 with Rule 5. In a foreclosure decree under Rule 3 if payment is not made within the time fixed the Court shall, on application made in that behalf by the plaintiff, pass a decree that the defendant and all persons claiming through or under him be debarred from all right to redeem the mortgaged property. Likewise under Rule 8 in the case of a final decree in a redemption suit, when the payment is not made within the time fixed and the mortgage is not simple or usufructuary mortgage, the Court shall, on application made in that behalf by the defendant, pass a decree that the plaintiff and all persons claiming through or under him be debarred from all right to redeem the mortgaged property and also, if necessary, ordering the plaintiff to put the defendant in possession of the property. In the case of a final decree for foreclosure and of a final decree in a redemption suit, the Court for good cause shown and upon such terms as it thinks fit can from time to time postpone the day fixed for payment. But in the case of a final decree for sale there is no provision in Rule 5 under which the Court could extend the time for payment of the decree amount). Nor has, as I have already stated, the last) portion of Section 89 of the Transfer of Property Act been re-enacted extinguishing the right to redeem and the security on the passing of the final decree. The omission to re-enact the last clause of Section 89 of the Transfer of Property Act is clear indication that the right of the mortgagor is not extinguished on the passing of a final decree. The question is whether the remedy is barred. It would be barred if there is a decree in favour of the mortgagor. So long as there is no decree in his favour which is capable of execution it cannot be said that the remedy is barred. The argument that he can pay the money at any time and, therefore, it must be considered that he has got an executable decree overlooks the fact that he cannot himself enforce a relief which is not given to him by the decree, but he can prevent the property from being sold; for the property is only security for the debt due to the mortgagee, and so long as that property is only security for the debt, the debtor is liable to pay the debt, and on payment of such debt the law stays the hands of the mortgagee from bringing the property to sale. But this does not enable the mortgagor to enforce a remedy which is not given him by the decree, but which is only a shield to prevent his property from being sold by the mortgagee.

3. The decision in Vedapurati v. Vallabha Valiya Raja (1902) 25 Mad. 300 has no application to the present case as in that case there was a previous decree for redemption, and the Court held that a subsequent suit for the same relief was not maintainable. The decisions in Vedapurati v. Vallabha Valiya Raja (1902) 25 Mad. 300 and Maruti v. Krishna (1899) 23 Bom. 592 have no application to the present case.

4. If the decree in the suit of the mortgagee is not an executable decree so far as the mortgagor is concerned, Section 47 of the Civil P.C. will not be a bar. Whether Section 11 of the Civil P.C. is a bar will depend upon what was decided in the former suit and what is the subject-matter of the second suit. In a suit by the mortgagor for redemption of the mortgaged property what questions have to be determined are set out in Section 60 of the Transfer of Property Act. In a suit by the mortgagee for sale the question whether the mortgagor has the right to redeem is not put in issue. As observed by the learned Chief Justice in the Full Bench case in Ramji v. Pandarinath (1919) 43 Bom. 334. 'The substantial matter in issue in a redemption suit is not the existence of the mortgage, for the filing of the suit in itself an admission of the mortgage and of the original mortgage debt. The substantial question is how much must be paid by the mortgagor to the mortgagee in order to entitle him to recover possession and a reconveyance of the property in cases where the title has been transferred.' In a suit for sale by the mortgagee the questions for determination are whether there is a mortgage and what is the amount due to the mortgagee, and it is difficult to see how the question in the second suit was directly or indirectly in issue in the former suit. It was held in Ramji v. Pandharinath (1919) 43 Bom. 334 that a second suit for redemption by the mortgagor was not barred by Section 11 or Section 47 of the Civil P.C. even though in the first suit for redemption, decree nisi was passed which neither the mortgagor nor the mortgagee applied to be made absolute. The learned Chief Justice and Mr. Justice Macleod held that the right of the mortgagor was not extinguished by the passing of a decree nisi in a redemption suit and, therefore, the second suit was not barred. This is opposed to the view of the Madras High Court. In this case there was only a suit for sale by the mortgagee which was made final, and the reliefs in the suit for the redemption by the mortgagor are different from those claimed in the former suit.

5. In this case the defendant is in possession of the mortgaged property under an othi or usufructuary mortgage. He has sued on the mortgage and has got a decree for sale. He has not brought the property to sale and more than three years have elapsed from the date of the decree. The mortgagee practically wants to convert the decree for sale into a foreclosure decree. I do not think that the Transfer of Property Act or the Civil P.C. would enable him to| treat a decree for sale into decree for foreclosure. The learned Judges in Adipuranam Pillai v. Gopalasami Mudali (1908) 31 Mad. 354 expressed a doubt whether a suit for redemption could be maintained by a mortgagor who has failed as a defendant in a suit for sale on the same 'mortgage and observed' that 'if this cannot be done by the mortgagor, then the mortgagee may, hi many cases, convert at his option his decree for sale into a decree for foreclosure, a course which is not contemplated by the Transfer of Property Act. Sale may, under Sections 89 and 92, be ordered in lieu of foreclosure in a suit for foreclosure or redemption, but there is no provision for the conversion of a decree for sale into a decree for redemption.' There is no direct authority for the contention that in the case of a final decree for sale which is not executed by the mortgagee a suit for redemption by the mortgagor would not He. In an old case Senhouse v. Earle (1752) 2 Ves. 450 it was held, a previous suit in which there was no final order for redemption could not bar a suit for redemption by the mortgagor. Fisher in his book on Mortgages relies upon this case and another case in Quarrell v. Backbord (1816) 1 Madd. 269 and says that possession under foreclosure is a good defence to an action for redemption. But; where there is no final decree for foreclosure a suit for redemption by the mortgagor would not be barred.

6. In this case the plaintiff obtained the mortgage pending the suit. If the mortgagor's right to redeem is not barred, the plaintiff's right also would not be barred : see Faiyaz Hussain Khan v. Prag Narain (1907) 29 All. 339. After a careful consideration of all the cases I hold that the plaintiff's suit is not barred by the decree in the previous' suit.

7. In the result, the appeal is allowed and the suit is remanded to the District Munsif's Court of Madura Town for the disposal of the case after recovering findings on Issues Nos. 2, 4 and 6. Costs will abide the result. Court-fee paid in this-Court to be refunded.


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