Judgement

Appeal (No. 96 of 1930) from a decree of the High Court (February 6, 1929) affirming, with a modification, a decree of the District Judge of Ghazipur (September 4, 1925) which affirmed a decree of the Additional Subordinate Judge.

The respondents instituted a suit in 1924 to redeem a mortgage by conditional sale executed in 1864. The question arising upon the appeal was whether the suit could be maintained having regard to a decree for redemption made in 1896 which had not been further proceeded upon.

The facts, and the material provisions of the Transfer of Property Act, 1882, appear from the judgment of the Judicial Committee.

The High Court (Boys and Ashworth JJ.)3 affirming the lower Courts, held that the suit could be maintained, but modified the decree as to the interest recoverable.

1934. June 22, 25. Hyam for the appellants. The suit was in reality a claim to enforce the decree of 1896, but that could be done only by proceedings in execution Code of Civil Procedure, 1908, s. 47 ; Hari Ravji Chiplunkar v. Shapurji Hormusji (( 1886) L. R 13 I. A. 66.) ; and proceedings of that nature were barred by s. 48 of the Code. Secondly, the suit was barred by s. 11 of the Code, as the same issue had been tried in the earlier suit. The Full Bench of the Madras High Court held in Vedapuratti v. Vallabha Valiya Raja (( 1902) I. L. R. 25 M. 300.) that when a decree for redemption has been made but not executed, a subsequent suit is not maintainable. If that is so the question whether the decree of 1896 extinguished the right to redeem under s. 60 of the Transfer of Property Act, 1882, does not arise. It is submitted, however, that it did so. The words in the decree that upon default the mortgagors case " was to stand dismissed " should be construed as a provision, in accordance with s. 92 of the Act, that upon default all right to redeem was to be debarred. The words are capable of that meaning, and it should be presumed that the Court intended to make a decree in accordance with the Act. Sita Ram v. Madho Lal (( 1901) I. L. R. 24 A. 44.) and Hari Ram v. Indraj (( 1922) I. L. R. 44 A. 730.), which were relied on, are distinguishable. Neither of them related to a mortgage by conditional sale; the Court therefore had power under s. 92 to decree a sale, and it was not possible to say which alternative the decree intended. The judgment of the Board in Maina Bibi v. Chaudhri Vakil Ahmad (( 1924) L. R. 52 I. A. 145.) does not affect this case, because the Board held that the position there was not analogous to that arising under a mortgage. [Siva Per shad Maity v. Nundo Lall Kar Mahapatra (( 1890) 1. L. R. 18 C. 130.) was also referred to.] The respondents did not appear.

July 19. The judgment of their Lordships was delivered by

LORD RUSSELL OF KILLOWEN. This appeal from the High Court at Allahabad arises in a suit for redemption of a mortgage and further charge, the appellants being the heirs 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 June 22, 1864. By the mortgage certain shares in five 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 five 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 two 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 three villages the plaintiff could redeem th