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Nilu Roy Vs. Asirbad Mandal and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal321,60Ind.Cas.809
AppellantNilu Roy
RespondentAsirbad Mandal and anr.
Cases ReferredDwarka Nath Nandi v. Mritun
Excerpt:
civil procedure code (act v of 1608), section 11, expl. iv, order ii, rule 2 - mortgages, several--successive suits by mortgage, whether competent--causes of action, distinct--procedure. - .....include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, rule 2(2) provides that where a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. if rule 2(1) is applicable to the circumstances of this case, rule 2(2) plainly operates as a bar, but, in our opinion, rule 2(1) has no application here. the rule provides in essence that the plaintiff shall not be entitled to split his cause of action into fragments and bring separate suits in respect thereof. but although the rule thus requires that every suit shall include the whole of the claim arising from one and the same cause of action, the rule does not further require.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1. This is an appeal under Order XLIII, Rule 1, Clause (u), of the civil Procedure Code, from an order of remand made under Order XLI, Rule 23, in a suit to enforce a mortgage-security. The defendant executed an installment mortgage bond in favour of the father of the plaintiffs on the 25th June 1900, in respect of his share in the disputed property. The bond provided that, if default was made in the payment of two successive installments, the entire sum would become recoverable. On the 30th November 1917, the plaintiffs, upon the allegation that Bush default had been made-, instituted the present suit for realization of their dues by sale of the hypothecated property. It appears that on the is February 1899 the defendant and his brother, now deceased, had executed another simple mortgage in favour, of the father of the plaintiffs in respect of the entire property. In 1911 the mortgagee sued to enforce (hat mortgage and on the 27th November 1911 obtained a decree for sale which has not yet been executed. In that suit no mention of the second mortgage was made by either party. The mortgagor-defendant resist the present suit on the second mortgage on the ground that it is not maintainable in view of the decree already made in the previous suit which might, and ought to have included the claim now put forward. The Trial Court gave effect to this contention and dismissed the suit, On appeal, the Subordinate Judge has coverlid the objection in bar as untenable and has remanded the case for, investigation on the merits, We have been invited, on this appeal, to examine the legality of the order made by the Subordinate Judge.

2. There has been a sharp difference of judicial opinion upon the question whether the bolder two independent mortgages over the same property, who is not restrained by any covenant in either of them, is competent to institute separate suits to obtain a separate decree for sale on each of them The point was mooted before a Full Bench of the Allahabad High Court in Sri gopal v. tirthi Singh 20 A. 110 (F.B.) A.W.N. (1897) 216 : 9 Ind. Cas. (N.S.) 431 The Court did not express an opinion upon the question, further than this, that they were not prepared to endorse the decision of the lower Appellate Court that the second of such separate suits would be barred by the application of Section 4 of the Code of Civil Procedure, 1982 which embodied the principle that every suit must include the whole of the claim which the plaintiff was entitled to make in respect of the cause of action). When the case was taken up to the Judicial Committee, Sri Gopal v. Pirthi Singh 29 I.A. 118 : 24 A. 429 (P.C.) : 4 Bom. L.R. 827 : 6 C.W.N. 889 : 8 Sar. P.C.J. 293 Sir Ford North observed as follows, with regard to the difficulties which had to be removed from the plaintiff's path before he could succeed:

3. Among others, Section 43 of the Civil Procedure Code was held to be a bar to his suit in the two first Courts. The Court of Appeal expressed some doubt whether that was correct. There might have been a nice question to be argued; but the appellant's Counsel did not it and did not even read the section to the Committee.' It was apparently not brought to the notice of the Judicial Committee that the same Fall Bench which had, on the 10th November 1897, expressed a doubt on the question in the case then under appeal, had, shortly after ward, on the 17th February 1898, made a definite pronouncement on the subject in Sundar Sirtgh v. holu 20 A. 322 (F.B.) : A.W.N. (1898) 58 : 9 Ind. Dec. (N.S.) 566 and bad ruled that there was nothing in the Code of Civil Procedure or in the Transfer of Property Act to prevent the holder of two independent mortgages over the same property, who was not restrained by any covenant in either of them, from obtaining decree for sale on each of them in a separate suit. This decision of the Allahabad High Court has formed the subject of much controversy in the other High Courts. Its correctness was questioned in Madras in the cases of Doasami v. Venkataseshayyar 25 M. 108 : 11 M.L.J. 373 and Nattu Krithnnna chariar v. Annangara chariar 30 M. 353 : 2 M.L.T. 330 : 17 M.L.J. 301 But the authority of these cases has been considerably shaken, if they have not been actually overruled, by the decision of the Full Bench in Subramania Aiyar v. Bal subramania Aiyar 30 Ind. Cas. 317 : 38 M. 927 (F.B.) : 29 M.L.J. 195, which affirms the proposition that it is open to a mortgagee to bring a suit for the recovery of his debt by sale of the properties mortgaged to him, subject his interest in a prior mortgage The same view has been recently approved in Patna: Jagemath Singh v. Mohra Kuvar 39 Ind. Cas. 76 : 2 P.L.J. 118 : 1 P.L.W. 653 : (1917) Pat. 194 The Bombay High Court has, on the other hand, consistently refused to follow the rule enunciated in Sundar Singh v. Bholu 20 A. 322 (F.B.) : A.W.N. (1898) 58 : 9 Ind. Dec. (N.S.) 566 as will appear from Keshavram Dulvaram v. Bmchhod Fakira 7 Ind. Cas. 330 : 38 C. 60 : 13 C.L.J. 21 : 14 C.W.N. 1053 and Dhondo Ramchandra Kulkarni v. Bhikoii Gopal 27 Ind. Cas. 1005 : 39 B. 138 ; 17 Bom. L.R. 144. in this Court, a doubt was expressed by Brett and Sharfud Din, JJ., in Hari Narain Banerji V. Shama Sundari Dasi 6 Ind. Cas. 159 : 37 C. 589 : 11 C.L.J. 551 where, however, the question did not actually require decision. But in Gobind Prasad v. Tek Narain 7 Ind. Cas. 330 : 38 C. 60 : 13 C.L.J. 21 : 14 C.W.N. 1053 Brett and Vincent, JJ., ruled that a person having several mortgages over the same property was entitled to bring a suit on the earlier mortgages without joining in that suit his claim under the later mortgages. The cases in Bombay and Madras which were pressed upon the attention of the Court were all distinguished. In this Conflict of, judicial opinion, no useful purpose would be served by an examination of the facts of the particular cases where the question arose, it sufficient to state that several of the decisions either entirely ignore or do not attach sufficient importance to the obvious distinction between the question of the right to institute a suit and the question of the nature and form of the relief which may be properly granted therein if the suit is held to be maintainable. We are here concerned primarily with the question, whether the plaintiffs-respondents were entitled to institute this suit. If the answer be in the affirmative, the subsidiary auction would arise, what relief are the plaintiffs entitled to obtain.

4. As regards the maintainability of the suit, the undoubted right possessed by the plaintiffs in that behalf under the mortgage can fact, is said to have been extinguished by the operation of either Order II, Rule 2(1) or Explanation IV to Section 11 of the Civil Procedure Code. We are of opinion that neither of these provisions avails the defendant.

5. Order II, Rule 2(1) provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, Rule 2(2) provides that where a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. If Rule 2(1) is applicable to the circumstances of this case, Rule 2(2) plainly operates as a bar, but, in our opinion, Rule 2(1) has no application here. The rule provides in essence that the plaintiff shall not be entitled to split his cause of action into fragments and bring separate suits in respect thereof. But although the rule thus requires that every suit shall include the whole of the claim arising from one and the same cause of action, the rule does not further require that every suit shall include every claim or every cause of action which the plaintiff may have against the defendant. This distinction has been emphasised by the Judioial Committee in the cases of Baia of Fittapur v. Suriya Eow (18), Amanat Bibi v. Imdad Eusiin 15 I.A. 106 : 15 C. 800 (P.C.) : 12 Ind.Jur. 255 : 5 Sar. P.C.J. 214 : Rafique & Jakson's P.C. No. 103 : 7 Ind. Dec. (N.S.) 1107, Hanuman Kamat v. Hanuman Mandur 18 I.A. 158 : 19 C. 123 (P.C.) : 6 Sar. P.C.J. 91 : 9 Ind. Dec. (N.S.) 927 Sarninathan chetly v. Palaniappa Chetty 26 Ind. Cas. 228 : 41 I.A. 142 : 18 C.W.N. 617 : (1914) A.C. 718 : 17 New Law Reports 56 : 83 L.J.P.C. 131 : 110 L.T. 913 (P.C.) In the case last mentioned Lord Moulton observed that 'the rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion, in one and the same action, of different causes of action, even though they arise from the same transaction, the first part of the clause makes it incumbent on the plaintiff to include the whole of his claim in his action; the second portion makes it incumbent on him to ask for the whole of his remedies; the final paragraph is rot intended to be an illustration of the foregoing provisions but a substantive enactment, making an obligation and a collateral security for its performance (which would otherwise be two independent causes of action), one cause of action for the purposes of the section.' It may be conceded that particular instances may involve matters of considerable nicety and afford room, for divergence of judicial opinion on the question whether the causes of action for the two suits are one or different. To mention one example only: the Courts are not agreed upon the question whether where several promissory notes have been executed for portions of the same debt, each promissory-note creates a distinct cause of action on which a separate suit may be brought, Preonath Mukerji v. Bishnoth Prasad 29 A. 256 : A.W.N. (1907) 4 A.L.J. 5. Anantanarayana Iyer v. Savittri Ammal 13 Ind. Cas. 458 : 36 m. 151 : (1912) M.W.N. 59 : 11 M.L.T. 63 : 22 M.L.J. 231. We are of opinion, however, that the case of two distinct mortgages, successively executed by the same debtor, in respect of the same property and in favour of the same creditor, is reasonably free from difficulty. The causes of action on the two mortgages are clearly distinct, It is not necessary to attempt to define the expression ' cause of action' for our present purpose; it is sufficient to recall the description given by Lord Watson in Chand Row v. Partab Singh 15 I.A. 156 : 16 C. 98 (P.C.) : 5 Sar. P.C.J. 243 : 12 Ind. Jur. 331 : 8 Ind. Dec. (N.S.) 65: 'The cause of action has no relation whatever to the defence which may be set up...nor does it depend upon the character of, the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of actor, or, in other words, to the media upon which (he plaintiff asks the Court to arrive at a conclusion in his favour.' This substantially accords with the earlier statement by We4t, J., in Haji Hasam Ibrahim v. Mancha. ram 3 B. 137 : 2 Ind. Dec. (N.S.) 91 and Shridhar Vinayak v. Narayan 13 Ind. Cas. 458 : 36 m. 151 : (1912) M.W.N. 59 : 11 M.L.T. 63 : 22 M.L.J. 231 a cause of action is to be regarded as the same if it rests upon facts which are integrally connected with those upon which a right and an infringement of a right have already been once asserted.' See also the judgments of Esher, M.R., Fry, L.J., and Lopes, L.J., in Bead v. Broun (1889) 22 Q.B.D. 128 at P. 131 : 58 L.J.Q.B. 120 : 60 L.T. 250 : 37 W.R.131, Tested from the point of view thus indicated, the objection taken by the defendant proves unsustainable. The right of the plaintiffs to enforce the first mortgage depended upon facts entirely distinct from those essential for the establishment of their right to enforce the second mortgage; the right to sue upon the first security was neither enlarged nor abridged when the second security was given. The same point of view was expressed in different terms when the test was formulated by Sao, C.J., in Xaihinath v. Nathoo Keshan 25 Ind. Cas. 73 : 38 B. 444 that if the evidence required to support the two claims is different in any material respects, the causes of station are different. Reference may, in this connection, be made to the judgment of Woodroffe, J., in Mandal 8f Co. v. Fazul Bllahie 12 C. 60 : 6 Ind. Dec. (N.S.) 42 where, after pointing out that the rule is framed to avoid the splitting of claims and remedies and to protect the defendant from being twice vexed for one and the same cause of action, the learned Judge quoted with approval the dictum of Garth, C.J., in Pramaia Dasi v. Lakhi Narain Mitier 12 C. 60 : 6 Ind. Dec. (N.S.) 42 that care must be taken to give the section no wider construction than it would reasonably bear and emphasised the observation in Senha Ayyar v. Krishna Ayyangar 24 M. 96 at P. 109 and lined Dholchand v. Pit Saheb Jiva Miya 7 B. 134 ; 4 Ind. Dec. (N.S.) 91, that when parties choose to agree that there should be two instru ments and two obligation!', the Court is not justified in saying that there is only one obligation. This is well illustrated by the decisions in Ramaswami Ayyar v. Vyihinatha Ayyar 26 M. 760 : 13 M.L.J. 448 Tnrikaikat Madathil Raman v. Thiruthiyil Krishm n Nair 29 M. 153 : 16 M.L.J. 48 (F.B.), and Ram Sahai v. Ahmadi Begnm 9 Ind. Cas. 53 : 33 A. 302 : 8 A.L.J. 47 which are authorities for the proposition that Section 43 of the Code of 1882, which has been re placed by Order II, Rule 2 of the Code of 1908, has no application to different suit upon differ mortgages over the same property. The judgment in the case of Atab Prattianick v. Mehrulla Sardar 23 Ind. Cas. 426 : 19 C.L.J. 590, which purports to follow Fethavram Dulmram v. Banchkod Fakita 30 B. 156 : 7 Bom. L.R. 811, was pronounced upon an entirely different state of facts and cannot be treated as conclusive upon the question raised before us. We hold, accordingly, that Order II, rul8 2, does not bar the present suit.

6. Explanation IV to Section 11 is equally of no avail to the defendant. The explanation is in the following terms: Any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. ' The 'former suit ' referred to here is the 'former suit' mentioned in the substantive portion of Section 11, which provides as follows:

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating, udder the same title, in a Court competent to try sob subsequent suit or the suit in which Each issue has been subsequently raised and has been beard and finally deeided by such Court.

7. It will be observed that, when the defendant invokes the aid of Explanation IV, he assumes that when a plaintiff as second mortgagee sues to enforce his security and to out off the equity of redemption under the seabed mortgage (which is really a mortgage of the equity of redemption under the first security) the parties litigate under the same title as they do when the plaintiff as first mortgagee seeks to enforce his security and to out off the equity of redemption under that mortgage. We shall not pause to scrutinize the validity of this assumption, which, to say the least, is open to question. But, even on this assumption, the defendant must prove that the claim on the second mortgage might and ought to have been made a ground of attack in the former suit on the first mortgage. It is dearly not sufficient to show merely that it might have been made a ground of attack; if that had been the intention of the Legislature, the word ought ' might as well have been omitted. The result would then have been that a plaintiff would have been compelled to unite in one action all causes of action that he was at liberty to join under Order III, Rule 3. Consequently, the defendant must establish, not merely that the plaintiffs might, but also that, they ought to have made the claim on the second mortgage as a ground of attack in the former suit. In this connection, that circumstance is not wholly without significance (hat in the previous suit on the first mortgage, the defendant did not even suggest that such a course should be adopted. Now, as was observed by Lord Morris, in Kamtswar Pershad v. Bakumari Ruttan Koer 19 I.A. 234 : 20 C. 79 (P.C.) : 6 Sar. P.C.J. 241 : 10 Ind. Dec. (N.S.) 53 it depends upon the particular facts of each case to decide 'whether a matter ought to have been made a ground for defence or attack in the previous suit, No useful purpose would be served by an attempt to frame inelastic formulas BO as (o impair the elasticity of the rule of the Code, expressed in the colourless words might and ought--'words used by Lord Westbury in Hunter v. Stewart (1861) 4 De G.F. 7 J. 168 : 31 L.J. Ch. 346 : 8 Jur. (N.S.) 317 : 5 L.T. 471 : 10 W.R. 176 : 46 E.R. 1148 : 135 R.R. 72 An examination of the casee on the subject discloses that tests of various descriptions, both positive and negative, have been applied to determine, in individual in tanees, whether a claim which might have been, ought to have been included in the prior suit. It has been said, for instance, that where matters are so dissimilar that their union might lead to eon, it cannot reasonably be held that they ought, to have been included in the same suit; Kameswar letshad v. faikumari huttan Koer 19 I.A. 234 : 20 C. 79 (P.C.) : 6 Sir. P.C.J. 241 : 10 Ind. Dec. (N.S.) 53. On the other hand, it has been said that if the matters arise out what may be regarded, for judicial purposes, aa one transaction, several suits should not be permitted to proceed so as to render separate investigations necessary: Bhridhnr V. Vinnyak Narayan 11 B.H.C.R. 224, Haii Hasam Ibrahim v. Mancharam 3 B. 137 : 2 Ind. Dec. (N.S.) 91, The matter must, however, be regarded as essentially different where it did not originate in the same transaction and when it constitutes a wholly different right in the plaintiff, giving rise to a different duty on the part of the defendant. These and other teste, however, which may be discoverable from an analysis of the cases in the books cannot be treated as an exhaustive enumeration of all the requisites or condition before the bar can be applied. As Wtgram, V.C., said in Henderson v. Henderson (1843) 3 Hare 100 at P. 115 : 67 E.R. 313 : 64 R.R. 213, the Court has to determine whether the point properly belonged to the subject of litigation and whether the parties exercising reasonable diligence might have brought it forward at the time. In the determination 'of this question, in the circumstances of a particular 0180, the limitation must be borne in mind that, where a given matter becomes the subject of litigation in and of adjudication by a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their while case and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of a matter which might have been but was not brought forward as part of the subject in contest. From this standpoint, the view has been maintained that, where separate rights have been infringed, separate actions may be maintained, since the infringement of separate rights gives rise to separate causes of action : Serrao v. Noel (1885) 15 Q.B.D. 549 Brunsden v. Humphrey (1884) 14 Q.B.D. 141 : 53 L.J.Q.B. 476 : 51 L.T. 529 : 32 W.R. 944 : 49 J.P. 4 farambith Manakkaly, futhengattil idoosamu 7 Ind. Cas. 330 : 38 C. 60 : 13 C.L.J. 21 : 14 C.W.N. 1053; see also the judgment of Garth, 0, J, in Dinobundhoo Chowhadry v. Krittomonee Dossee 2 C. 152 F.B. : 1 Ind. Dec. (N.S.) 393 and of Lord Watson in Mahabtr Jfershad Singh v. Macnaghten 16 I.A. 107 : 16 C. 682 (P.C.) : 13 Ind. Jur, 133 : 5 Sar. P.C.J. 345 : 8 Ind. Dec. (N.S.) 451. Bsferenoe may also be made to the judgment of Lord Macnaghten in Moosa Ooolam Anff v. Ebrahim Qoolam Ariff 16 IND. CAS. 70 : 40 C. : 16 C.W.N. 937 : 23 M.L.J. 215 : 16 C.L.J. 642 : 14 BOM. L.R. 214 : 12 M.L.T. 449 : 5 BUR. L.T. 216 : ( 1912) M.W.N. 1097 : 10 A.L.J. 486 : 6 L.B.R. 119 : 39 I.A. 237 (P.C.) and of Sir John Hidge in Idahomed lbrahivn, Bossein Khan v. Ambika perthad Singh : (1912)14BOMLR280 where some of the tests already mentioned were applied by the Judical Com mittee to determine the applioability of Explanation II to Section 13 of the Office of 1882. The decision of this cburt in Hati Narain Behari v. Shama Sundtri Dasi 6 Ind. Cas. 159 : 37 C. 589 : 11 C.L.J. 551 furnishes an instructive illustration as to how two rights, originally independent, may, by union in the same per ROD, became amalgamated and be thereafter treated as an indivisible entity. There a puisne mortgagee, under the provisions of Section 74 of the Transfer of Property Act, paid off the prior mortgagee and thereby became subrogated to his rights. He then sued to enforce his own mortgage and obtained a degree. He next sued to enforce his rights under the prior mortgage which he had satisfied, It was ruled that Section 43 of the Civil Procedure Code, 1882, was a bar to the second suit, as he might and ought to have included in the former suit the claim, not only under his own mortgage, but also that under the prior mortgage; the sum paid to discharge the latter was, it was said, an addition or accretion to the claim on his own mortgage. No such considerations arise in the cane before us, where the securities were initially distinct and have throughout retained that character. We are accordingly of opinion that, although the plaintiffs might have included the claim on the second mortgage in the previous suit if they had so bossed, that course was not obligatory upon them, and the present suit is consequently not barred under Explanation IV to lection 11, Civil Procedure Code.

8. We may add that in Dorasami v. Venkatisesbayyar 25 M. 108 : 11 M.L.J. 373, reliance was placed on Sections 61, 65 and 99 of the Transfer of Property Act as well as on the form of Desree No. 128 of Schedule 17 of the Civil Procedure Code of l082, to support the view that the suit on the earlier mortgage should include the claim on the later mortgage, and that a suit for sale on the earlier mortgage subject to the later mortgage could not be maintained. Whether the provisions mentioned really justified the conclusion may be a matter for argument Tiijjo Bibi v. Bhagwan Prasad 16 A. 295 : A.W.N. (1894) 93 : 8 Ind. Dec. (N.S.) 192 Rhuda Bahsh v. Alim-un nissc, 27 A. 313 : 1 A.L.J. 715 : A.W.N. (1904) 273 Ranjit Khan v. Ramdhari Singh 2 Ind. Cas. 859 : 31 A. 482 : 6 A.L.J. 654 But as pointed out by Wallis, C. J., in,Subramania Aiyar v. Balacubramania Aiyar 30 Ind. Cas. 317 : 38 M. 927 (F.B.) : 29 M.L.J. 195 Order XXXIV, Rule 1 and Rule 14 of the Code of 1908, which reproduce the substance of Sections 85 and 99 of the Transfer of Property Act, with important modifications, do not lend even apparent support to the conclusion deduced from those sections. As regards Section 61 it does not, in our opinion, justify the inference that in every case not exactly covered thereby, because the properties comprised in the two securities are different, it is not merely permissible to the mortgagee to claim simultaneous redemption of the two mortgages, but it is also obligatory on him to proceed against the mortgagor in the sama suit in respect of both the securities. It is by no means improbable that Section 61 was framed in its present form because the doctrine of consolidation of securities, which was intended to be rendered inapplicable, had been limited to cases where the owner of different fistates mortgaged them to one person separately for distinct debts or successively to secure the same debt or the game debt with further advances Shuttleieorth v. Laycooh (1684) 1 Vern 245 : 23 E.R. 443 Pops v. consol (1692) 2 Vern. 286 : 23 E.R. 784 Jones v. Smith (1994) 2 Ves. (Jun) 372 : 30 E.R. 679 Willie v. Lugg (1761) 2 Eden 78 : 28 E.R. 825. This doctrine, as we know, was extended by logical deductions to such an extent that it was entirely abolished by Section 17 of the Covenanting Act, 1881. In view of these considerations, we are not prepared to hold that Section 61 may be legitimately regarded as indicative of an intention en the part of the Legislature to depart from the prevailing doctrine that a mortgagor may always redeem by paying the specific debt secured by the mortgage together with such prior liens as the mortgage may have been compelled to pay for the protection of the mortgage. Nor can we invoke the aid of the rule that the equitable, like the legal, mortgagee, is entitled, as against the mortgagor and all claiming under his (who have not or are not allowed to retai the full benefit of the legal estate) to ad debt, subsequent advances o liabilities made or incurred upon the security or credit of the estate without notice of an; manse charge. This principle is found substantially on the policy which underlie the doctrine of taking as against mesn encumbrances. Section 80 of the Transfe: of Property Act militates against the vievi that the Legislature could have intended the application of a principle analogous to that of tacking in the class of cases now before us. Indeed, it looks that, where Section 61 was invoked in the case of Dorasami v. Venkataseshayyar 25 M. 108 : 11 M.L.J. 373 the Court took recourse to a doctrine which was neither consolidation nor tacking but possessed come of the characteristics of both the principle Finally, we cannot overlook that Section 61 must be read with Order XXXIV, Rule 12, Civil Procedure Code, which re-places Section 96 and counterplots the possibility of sale of mortgaged property subject to a prior mortgage (see also Forms of Decree No. 79 in Appendix D to Civil Procedure Code, 1908). As Wallie, C.J, points out, some infusion may possibly have been created by an inappropriate use of the formula that 'the rights of redemption and foreclosure are coextensive' which has reference to the time for institution of suits to enforce such rights and not to their other incidents Brown v. cole (1845) 14 Sim. 427 : 65 R.R. 618 : 14 L.J. Ch. 167 : 9 Jur. 290 : 60 E.R. 424. The substance rf the matter is that, when it is asserted that the right to foreclose and the right to redeem are reciprocal, what is intended is that, since the right of the mortgagor and mortgagee are reciprocal and commensurable, redemption under the mortgage is such off to the expiration of the same time that the right to foreclc e is barred, unless by Statute a different time is fixed for redemption from that allowed for foreclosure. There is thus no escape from the position that the present suit is maintainable.

9. We have finally to consider what conditions, if any, should be annexed to the decree that may be made herein, for it is indisputable that the property cannot be sold twice in execution of the decrees in the two suits. There cannot be a sale on 1 the first morgue keeping alive a poise encumbrance, for such a sale conveys the interests of the mortgagor and the mortgage as they were at the dajie of the first mortgage and must, therefore, neon scarily weep away the subsequent encumbrance. On the other band, if the property were directed to be sold in execution of the decree on the second mortgage subject to the rights of the mortgage under the decree already made in his favor on the first mortgage, there might be needless complications and the property would not, almost to a certainty, fetch its proper values. The right course to follow in such circumstances is to direct that the property be sold free of both charges, whether the cale takes place in execution of the decree on the first mortgage or the decree on the second mortgage, and that the balance of sale-proceeds, after payment of. Incidental expenses, be applied, in discharge of the dues on the first mortgage and the second mortgage, one after the other, the residue, if any, to stand to the credit of the holder of vibe equity of redemption. This accords with the view taken by Rielardson, J, in Dwarka Nath Nandi v. Mritun cy Fatra 3 Ind. Cas. 175, where he held that there was nothing in the Code of Civil Procedure or in the Transfer of Pro party Act to prevent the holder of two independent mortgages over the same property, who is not restrained by any covenant in either of them, from obtaining a decree for sale on each of them in a separate suit, subject, however, to this reservation that he cannot sell the property twice over, nor sell it under the second decree subject to the first. This, in our opinion, is an accurate statement of the law applicable to this class of cases.

10. We direct, accordingly, that this appeal do stand dismissed with costs and the order of be carried out on the lines inviolate ed in this judgment.

Ernest Fletcher, J.

11. I agree.


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