1997 Supreme(Guj) 177

Gujarat High Court
Judgename :J.M.Panchal
VORA AMINBAI IBRAHIM - Appellant
Versus
VORA TAHERALI MOHMEDALI - Respondent
C.A. 55 of 1993
Decided On : 04/02/1997

Headnote:(a) Transfer of Property Act, 1882 - Sec. 58 - `Mortgage and `right of redemption - Nature and scope - Explained.

       Mortgage as defined in the Transfer of Property Act, is the transfer of an interest in immovable property for the purpose of securing the payment of a loan. A mortgage is created by act of parties. The mortgagors right is as indicated in Sec. 60 of the Transfer of Property Act, i.e., after the principal money has become due, the mortgagor has a right to pay the mortgage money and on such payment he has a right to require the mortgagee, among others, to deliver possession. This right cannot be extinguished except by the Act of parties or by a decree of a Court. This right is called the right to redeem and a suit to enforce it is called a suit for redemption. Thus, the scope of a suit for redemption is primarily to enforce the right to make payment of the mortgage money. A claim to redeem a mortgage actually does not attach to the land, although the decree passed in that suit may ultimately affect possession which is also an interest in land. An owner has a bundle of interests in property. By executing a mortgage he transfers only some interest to the mortgage and that also by way of security. That interest is confirmed to realization of mortgage debt, which, in the event of non-payment, may be realized out of the said security. What remains with the mortgagor after execution of the mortgage, is the ownership of the property, minus the interest transferred, and the right to repay the mortgage money and to get the burden of security discharged. That right has been created in the mortgagor and not in the property. Thus, when a mortgagor enforces his right to redeem, he does not enforce a right in land.

       [Para 11]

       (b) Transfer of Property Act, 1882 - Secs. 58 & 60 - Civil Procedure Code, 1908 - Order 23, Rule 1, Order 22 Rule 9, Order 9 Rule 9 - Redemption suit - Earlier suit stood abated - Successive suit can be filed till the right to redemption is extinguished - Procedural effect of Order 22 Rule 9 cannot override express provision of Sec. 60 of T.P. Act.

       Section 60 confers the right to redeem upon the mortgagor, and also provides that right is to continue until one or the other of the two eventualities mentioned in the section takes place; one, the act of the parties and the other, an order or a decree of a Court which extinguishes that right. Now, it is perfectly clear that when the suit abated, there was no express order of the Court extinguishing the right of redemption. Can it be said that the mortgagor could not enforce that right, because the second suit was barred under Order 22, Rule 9 ? If the Legislature in a piece of special legislation confers a particular right upon a party, it must intend that right should be an enforceable right. Therefore, in our opinion, the general provisions of the Civil Procedure Code as contained in Order 22, Rule 9, are to that extent overridden by the specific provisions of Sec. 60, T.P. Act. So long as the relationship of mortgagor and mortgagee continues, and so long as the right to redeem has not been extinguished by a decree of the Court, or extinguished by a decree of the Court, or by the act of the parties, the mortgagor is entitled to go to a Court of law to enforce his right. Of course the position with regard to limitation is different, because the Limitation Act expressly provides that the period of limitation for redemption suits is sixty years. It is clear from this decision that the right of redemption cannot be taken away from the mortgagor, except in the manner and to the extent provided by Sec. 60, T.P. Act. We are of the opinion that the abatement of the suit is not a decree of the Court, which extinguishes the right of redemption. The procedural effect of Order 22, Rule 9, cannot override the express provisions of Sec. 60.

       [Para 11]

       (c) Civil Procedure Code, 1908 - Sec. 11 - Res Judicata - Suit for redemption mortgaged property - Abatement of earlier suit - Is not decree - Successive suit not barred - Right to redemption is recurring till extinguished.

       Unless the equity of redemption is so extinguished, a second suit for redemption by the mortgagor if filed within the period of limitation is not therefore barred. If the mortgagee fails to establish that the old decree extinguished the right to redeem, there is no ground for saying that the old decree operates as res judicata and the Courts are prevented from trying the second suit under Sec. 11 of the Code of Civil Procedure. Even provisions like Order IX, Rule 9 or Order XXIII, Rule 1 would not debar the mortgagor from filing a second suit for redemption because, as in a partition suit, the cause of action in a redemption suit is a recurring one. The cause of action in each successive suit, until the right of redemption is extinguished or a suit for redemption is time barred is a different one. So long as the relationship of mortgagor and mortgagee continues and so long as the right to redeem has not been extinguished by a decree of the Court or by the act of the parties, the mortgagor is entitled to go to a Court of law to enforce his rights. The abatement of the first suit filed by deceased Sugrabai was not a decree of the Court extinguishing the right of redemption and as such, abatement of said suit would not operate as a bar in the second suit for the same relief.

       [Para 11]