This appeal from the High Court at Allahabad arises in a suit for redemption of a mortgage and further charge, the appellants being the hairs of some of the original mortgagees. The relevant facts leading up to the present litigation must first be stated. The mortgage and further charge are both dated 22nd June 1864. By the mortgage certain shares in 5 villages were mortgaged by way of conditional sale, the mortgagees being placed in possession, with no liability to account for mesne profits. The principal money was repayable at the end of three years. A further principal sum was secured by the further charge. In the year 1892 the mortgagor instituted a redemption suit alleging- that nothing was due under the securities, and claiming to be put into possession of the shares in the 5 villages, or, if the Court should find that any sum was due, that it might order redemption subject to the payment of such sum. The result of that suit was that as to the shares in 2 of the villages it was decided that (for reasons which need not here be stated) there was no right of redemption any longer existing, and that as to the shares in the other 3 villages the plaintiff could redeem them on payment of the proper proportion of the mortgage money, viz., Rs. 4,208-6-0. A decree dated 25th September 1896 was accordingly made in the following terms :
"It is ordered and decreed that the plaintiff is entitled to a decree for possession by redemption of mortgage in the following terms, viz., that he should pay Rs. 4,209-6-0 by 15th November 1896, that if he will pay the said sum he will get all the costs, except the pleader's fee incurred by him in this Court, and that in case of default his case will stand dismissed and the costs incurred by the defendants will be charged against him."
An appeal therefrom was dismissed with costs. No payment of the mortgage money was ever made and the mortgagees remained in possession. The suit in which the present appeal arises was commenced on 5th March 1924. The plaintiff is the representative and heir of the original mortgagor, the defendants being persons claiming through or under the original mortgagees and being in possession of the shares in the said 3 villages. By his plaint the plaintiff alleged that the whole of the Rupees 4,208-6-0 had been satisfied out of the increased profits of the mortgaged properties, and he claimed (a) possession of the shares of the 3 villages by redemption on the footing that the mortgage money had been satisfied, or (b) if any amount of the mortgage money be proved due, a decree for redemption on condition of payment of that amount. The two principal points for decision were (1) whether any and what amount of mortgage money was then due, and (2) whether this (the second) redemption suit was maintainable.
At the trial the Subordinate Judge decided (1) that the amount of mortgage money then due was Rs. 5,243-13-0, and (2) that notwithstanding the dismissal of the previous suit the present redemption suit was maintainable, and he made a decree (dated 14th November 1921) for redemption on payment into Court of the amount declared due on or before 25th April 1925. The Subordinate Judge considered that on the second point the case was covered by the decision in 1922 All, 377 (1). An appeal to the District Judge by the present; appellants was dismissed by him. He also considered that the case was covered by the above-mentioned decision. A second appeal to the High Court at Allahabad by the present appellants was equally unsuccessful, the Court holding that upon authority
"one cannot question the right of the plaintiffs to sue for redemption notwithstanding their failure to redeem under the decree of the previous suit."
Upon a cross-objection the High Court modified the redemption decree in regard to the amount payable on redemption thereunder.
The appellants now appeal to His Majesty in Council from the decision of the High Court and claim that the suit should have been dismissed. No complaint was made in argument before their Lordships in regard to the amount fixed as payable on redemption. The argument was confined to the broad proposition that no decree for redemption should have been made at all, and that the suit should have been dismissed. Counsel for the appellants based his contention upon three grounds viz. (1) that the suit, though in form a redemption suit, was in reality an application to enforce the old decree of 25th September 1896, that such a suit could not be maintained, and that execution of the old decree was barred by limitation : (2) that the decision in the former suit operated as res judicata, and that therefore S. 11, Civil PC, prohibited the Courts from trying the present suit : and (3) that no payment having been made under the old decree, the former suit stood dismissed on 15th November 1896, with the result that the mortgagor's right to redeem became extinguished under S. 60, T.P. Act, 1882.
The respondents did not appear before their Lordships' Board. In regard to the first point, it can only arise for consideration if the appellants fail la establish their third point, and their Lordships feel a difficulty in appreciating how it could then prevail ; because if a second suit for redemption is, in the circumstances of the present ease, properly maintainable then the simple answer to the first point is that the present suit is a redemption suit, and is not an application to enforce the old decree. In regard to the second point, their Lordships are of opinion that no relevant question of res judicata here arises. The issues decided in the former suit were (1) whether the, mortgagors were then entitled to redeem ; and (2) the amount then to be paid if redemption then took place. The issues in the present suit are (1) whether the right to redeem now exists, and (2) the amount now to be paid if redemption now takes place. If it could be said that the old decree involved a decision that the mortgagor's right to redeem was extinguished, that matter would indeed be res judicata, but this very question of the meaning and effect of the old decree arises for consideration under the third point. To that extent the second and third points overlap. It is sufficient to say in regard to the second point, that if the appellants fail to establish under their third point that the old decree extinguished the right to redeem, there is, in their Lordships' opinion, no ground for saying that the old decree operated by way of res judicata so as to prevent the Courts, under S. 11, Civil PC, from trying the present suit.
The important question for their Lordships' consideration is the third point, the answer to which depends, in their view, upon a correct appreciation of the joint effect of the relevant sections of the Transfer of Property Act, 1882, and the form of the old decree. It is to he noted that at the relevant date (1896) the rights of the mortgagor were governed by the Act as originally enacted : the sections hereafter cited or referred to are those of the original enactment. Further it is to be observed that the rights of a mortgagor in that part of India from which this appeal comes are regulated by the provisions of the Act. It is impossible to say (as may be said under English law) that the dismissal of a redemption action operates as a foreclosure, unless the justification of that statement is to be found in the language of the Act. The relevant sections of the Act are Ss. 60, 92 and 93. S. 60 in terms confers upon a mortgagor a right to redeem ''at any time after the principal money has become payable." This right however is limited by a proviso which runs thus:
"Provided that the right conferred by this section has not been extinguished by act of the parties or by order of a Court."
There is here no question of extinguishment by act of the parties. The right must therefore still exist, unless it has been extinguished by order of a Court. Ss. 92 and 93 indicate how such an order can be obtained. S. 92 provides for the decree to be passed by the Court in a suit for redemption if the plaintiff succeeds. The decree is to order an account of what will be due to the defendant on the date fixed for redemption, or is to declare the amount so due at the date of the decree. Further, it is to order that upon the plaintiff paying to the defendant or into Court the amount so due on a day to be fixed by the Court the defendant shall (inter alia) if necessary put the plaintiff into possession of the mortgaged property. Finally, the decree is to order:
"That if such payment is not made on or before the day to be fixed by the Court, the plaintiff shall (unless the mortgage be simple or usufructuary) be absolutely debarred of all right to redeem the property, or (unless the mortgage be by conditional sale) that the property be sold."
Section 92 thus enacts what should be the form and contents of a redemption decree ; but it enacts nothing more. If that section had been followed, the old decree would have in terms ordered that in default of payment on or before 15th November 1396, the plaintiff should be absolutely debarred of all right to redeem the property. The Act however by S. 93 provides a further opportunity for the defendant to obtain this relief. It provides (inter alia) that if payment is not made the defendant may (unless the mortgage is simple or usufructuary) apply to the Court for an order that the plaintiff and all persons claiming through or under him be debarred absolutely of all right to redeem ; and that if he so applies the Court shall pass an order that the plaintiff and all persons claiming through or under him be absolutely debarred of all right to redeem the mortgaged property. The section further enacts:
"On the passing of any order under this section the plaintiff's light to redeem and the security shall, as regards the property affected by the order, both be extinguished."
The old decree for some unexplained! reason departed from the form required by the
Act. It simply provided that in case of default by the plaintiff in payment his case will stand dismissed." It was contended by the appellant that these words read in the light of S. 92 were to be construed as meaning that the plaintiff was to be debarred of all right to redeem, and that the old decree accordingly was an order of a Court extinguishing the right to redeem within the meaning of the proviso to S. 60. Their Lordships are of opinion that unless constrained by authority they ought not so to hold. The right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose, and strictly complied with. In the present case the only basis for the claim that the right to redeem has been extinguished is S. 60; but in their Lordships' view the old decree cannot properly be construed as doing that which it does not purport to do, viz., as extinguishing the light to redeem.
No authority was cited to their Lordships in any way conflicting with the view which they have formed. 24 All. 44 (2)was a case of a usufructuary mortgage. The proper decree in a suit to redeem such a mortgage ought to have provided that in default of redemption the property should be sold. In fact it provided that in a case of default the judgment should be deemed non-existent, it was held by the Full Bench that a second redemption suit was maintainable. In 1922 All. 377 (1) a mortgagor brought a suit to redeem a simple mortgage and obtained a decree which provided that in a case of default "the suit will be considered dismissed." (A second redemption suit was held to be maintainable.) The case of 1925 PC 63 (3)was also cited. That was a decision of their Lordships' Board in relation to a second suit brought by the heirs of a dead man to recover possession of an estate which had been in the possession of his widow entitled to dower. In an earlier suit the heirs had obtained a decree for possession on payment of a proportionate part of the dower debt within six months; the decree provided that upon failure to pay, their suit should be dismissed. A second suit to recover possession was held to he maintainable. Had the widow's claim on the estate been (which it was not) similar to that of a mortgaged, the case would be an authority against the appellants. In any view, however, it does not assist their contention. There being no authority constraining them to adopt a different view, their Lordships think that the right to redeem has never been extinguished in the present case, and that the present suit for redemption was maintainable. This appeal accordingly fails and should be dismissed. Their Lordships will humbly advise His Majesty accordingly. If the respondents have properly incurred any costs in relation to the appeal, these must be paid by the appellants.