A mortgage and a lease back executed contemporaneously, where the rent payable represents the interest on the mortgage money, are generally considered to be parts of the same transaction. Therefore, a claim for rent in a previous suit and a claim for mortgage money in a subsequent suit, arising out of the same cause of action, cannot be split up and claimed in different suits, and the subsequent suit would be barred under Order 2, Rule 2 of the Code of Civil Procedure.

Raj Kishore Prasad, J.

1. This is a very unfortunate case in that the plaintiff appellant is going to lose his entire mortgage money due to wrong legal advice,

2. The circumstances in which the present appeal has been brought before this Court by the plaintiff may, briefly, be stated as below :

On the 16th March, 1915, defendant No. 1 executed a usufructuary mortgage bond, exhibit 1(b), for a sum of Rs. 4,000.00 in favour of the plaintiff for a term of two years. The due date of redemption, as mentioned in the bond itself, was 15th March, 1947. Subsequently, on the 11th October, 1946, defendant No. 1 executed another usufructuary mortgage bond in respect of the same property for Rs, 2,500.00 in favour of the plaintiff, exhibit 1(c). The date of redemption of this bond was 10th October, 1948.

3. After the execution of the first Ijara on 16th March, 1945, the defendant No. 1 took a lease back of the mortgaged house for two years, and executed a kerayannama in favour of the plaintiff (exhibit 3). After the execution of the second Ijara, exhibit 1(c), the defendant No. 1 again took lease back of the mortgaged house for two years, and executed a kerayanama on llth October, 1946, exhibit 3(a).

4. After the expiry of the date of redemption and also after the expiry of the lease, both of which expired in 1948, the plaintiff brought a money suit in 1951 for recovery of the arrears of rent. The suit was decreed on compromise on 26th July, 1951, exhibit 6.

5. This decree money, however, could not be realised, and, therefore, the plaintiff brought the present mortgage suit on 5th October, 1953 for recovery of Rs, 6,500/-, the two principal amounts advanced under exhibits 1(b) and 1(c), and for interest at the rate of eight annas per cent per month, as mentioned in the two bonds themselves.

6. The suit was contested by different sets of defendants, and one of the defences taken was that the suit was barred under Order 2, Rule 2, of the Code of Civil Procedure. The bar under Sec, 4 of the Bihar Money-Lenders Act, 1939 was also pleaded.

7. The learned Subordinate Judge of Gaya held that the suit was barred under Order 2, Rule 2 of the Code of Civil Procedure, and also under Sec. 4 of the Bihar Money-Lenders Act, and, therefore, he dismissed the plaintiffs suit in toto. The plaintiff, therefore, has preferred the present appeal against the said judgment and decree,

8. It was conceded by Asghar Hussain, who appeared for the plaintiff appellant, that, if the suit of the plaintiff be held to be barred under Order 2, Rule 2 of the Code of Civil Procedure, then the second question, about the suit being barred under Sec. 4 of the Bihar Money-Lenders Act, will be of no importance. He, however, contended that, if, it be held that Order 2 Rule 2 of the Code of Civil Procedure was not a bar to the present suit, then, even if it be held that Section 4 of the Bihar Money-Lenders Act was a bar to the suit, the plaintiff could, thereafter, assign his mortgage in favour of a registered money-lender, because the statutory period of limitation for enforcing the mortgage has not expired.

9. The crucial question, therefore, for determination is -- Is the suit of the plaintiff barred under Order 2, Rule 2, of the Code of Civil Procedure?

10. It is necessary to read first these provisions. Order 2, Rule 2, Civil Procedure Code, is in these terms :

"2.(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make 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 portion so omitted or relinquished.

(3) A person entitled to more than one relief in respect of the same cause of action may use for all or any of such reliefs; but if he omits, except with the leave of the Court, t