The main legal point established in the judgment is that under Order II, Rule 2 of the Code of Civil Procedure, 1908, every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, and failure to do so bars the institution of a further suit in respect thereof.

Judgement

Appeal (No. 94 of 1921) from a judgment and decree of the Chief Court of the Punjab (March 16, 1918) affirming a decree of the District Judge of Delhi.

The appellant in 1914 brought the present suit against the respondents under a mortgage deed dated January 19, 1904. By his plaint he alleged that certain sums were due in respect of principal and of interest, after crediting the proceeds of a partial realization ; he claimed a decree for the aggregate amount " from the defendants or the mortgaged property." The appellant had in 1908 sued claiming a decree for interest then due "against the defendants, recoverable from the mortgaged property, and the other property, and persons of the defendants."

The only question upon the present appeal was whether the appellants were precluded by Order n., r. 2, of the Code of Civil Procedure, 1908 (Code of Civil Procedure, 1908, Order n., r. 2 "(1.) Every suit shall include the whole of the claim which the plaintiff is entitled to mak e in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2.) 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 portions so omitted or relinquished. (3.) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs ; but if he omits, save with the leave of the Court, to sue for all such reliefs, he shall not sue for any relief so omitted. Explanation,—For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."), from maintaining the present suit having regard to the suit which they had brought in 1908.

The facts, and the relevant terms of the mortgage deed, appear from the judgment of the Judicial Committee.

Both the District Judge of Delhi and the Chief Court, on appeal, had held that the rule in question barred the present suit.

1922. Nov. 3. De Gruyther K.C. and Dube for the appellant. The decision of the Board in Muhammad Hafiz v. Muhammad Zakariya (L. R. 49 I. A. 9.) is not applicable. The appellant had been precluded from selling the equity of redemption under the decree obtained in his former suit on the ground that although Order xxxiv., r. 14, did not apply in Delhi or the Punjab, the Transfer of Property Act, 1882, not being in operation there, yet the principle of that rule applied Jagan Nath v. Budhwa. ( 1907 P. R. No. 2.) But it is part of the rule, and of the principle, that the plaintiff may sue to enforce the mortgage notwithstanding anything in Order n., r. 2. Further, in this case the appellant had two causes of action— namely, for the interest and for the principal. The suit in 1908 was on the personal obligation to pay the interest. In Muhammad Hafizs Case (L R. 49 I. A. 9.) the plaintiff had tried to get the property sold twice. [Reference was also made to Payana Reena Saminathan v. Pana Lana Palaniappa. ([ 1914] A. C. 618.)]

Wallach for the respondent. The suit is barred by Order n., r. 2; Muhammad Hafizs Case (I) applies. The cause of action in 1908 was the default in paying the interest; the appellant had by the deed in respect of that default the right to two reliefs against the property—namely, in respect of the interest and of the principal. His suit in 1908 was not merely upon the personal obligation; his plaint claimed a decree to recover from the mortgaged properties. It is not material that he purported to reserve a right to claim in respect of the principal; he could not do that by reason of Order n., r. 2. Since Order xxxiv.,

r. 14, does not apply it cannot affect this case, which falls within the express provision of Order n., r.

2.

De Gruyther K.C. replied.

Nov. 28. The judgment of their Lordships was delivere