In a plea of bar under Order 2, Rule 2, Civil Procedure Code, the defendant must prove the plaint of the previous suit to establish the identity of the cause of action.

Narasimham, J.

1. This is a second appeal by the plaintiffs against the concurrent decisions of the two lower courts (Munsif of Bihar Sharif and Additional Subordinate Judge of Bihar Sharif) dismissing their suit solely on the ground that it was barred by the provisions of Order 2, Rule 2, Civil Procedure Code.

2. The plaintiffs are the usufructuary mortgagees in respect of a house, the mortgagors being the two defendants who are father and son, respectively The date of the mortgage bond was the 29th October, 1949, and the period as specified in the mortgage bond was five years. It was alleged that after the execution of the mortgage bond the mortgagees were put in possession of the property hypothecated, but two days later, on the 31st October, 1949, the mortgagor-defendants were put in possession of the house as tenants of the mortgagees on the basis of a kerayanama executed in favour of the plaintiffs The defendants defaulted in payment of the stipulated rent and then the plaintiffs brought a rent Suit, No. 24 of 1956, for recovery of arrear rent, and obtained a decree in due course. It was put into execution in Execution Case No. 1560 of 1956, and sprayer was made by the plaintiffs for realization of the decretal amount by sale of the equity of redemption of the mortgaged property. An objection was filed by the judgment debtors in that suit (the defendants) under Sec. 47, read with Order 34, Rule 14, Civil Procedure Code. That application was allowed by the executing court (see Ex. A) which held that the mortgage and the kerayanama were part of the same transaction and that the equity of redemption could not, therefore, be sold in execution of that rent decree. The execution case was thus dismissed on the 14th March, 1957 The plaintiffs then instituted the suit under appeal on the 7th October, 1958, claiming either possession of the house with mesne profits or, in the alternative, decree for the mortgage money with interest.

3. Defendant No. 1 in his evidence expressed his willingness to pay one-half of the mortgage money in instalments. His son, defendant No. 2, though a joint executant of the mortgage bond, contested the litigation, urging that he was in reality a minor at the time of the execution of the bond, that his father (defendant No. 1) was a drunkard and that the loan was not taken for legal necessity. The trial court rejected all these contentions, and held the mortgage bond to be a valid and genuine document executed at a time when defendant No. 2 was also a major. It rejected his contetion that the loan was not taken for legal necessity; hut it dismissed the suit on a purely technical plea that Order 2, Rule 2, Civil Procedure Code, will operate as a bar in view of the previous litigation between the parties in the said rent suit and execution case. On appeal the learned Additional Subordinate Judge endorsed the findings of the trial Court on almost all the points and dismissed the appeal.

4. This second appeal was referred to a larger Bench by a Division Bench of this Court because that Bench thought that there were conflicting decisions of this Court and of other High Courts as regards the applicability of Order 2, Rule 2, Civil Procedure Code, where a second suit is brought by a mortgagee to enforce a mortgage though he had previously instituted a suit for recovery of a claim arising out of the mortgage.

5. Mr. Choudhary for the appellants invited our attention to a judgment of the Supreme Court in Gurbux Singh V/s. Bhooralal, AIR 1964 Supreme Court 1810 as regards the circumstances under which the plea of bar under Order 2, Rule 2, could be raised, and urged that the plaintiffs suit must succeed because the plaint in the previous rent suit was not filed in the present litigation and consequently there was no evidence for a court to hold that there was identity of the cause of action in the suits.

6. In my opinion this preliminary contention must prevail and it is unnecessary for me to discuss the