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High Court Of Rajasthan
Judgename : Wanchoo,Modi
AMBALAL JASRAJ - Appellant
Versus
AMBALAL BADARMAL - Respondent
Letters Patent Appeal 3 Of 1954
Decided On : 07/12/1957
REDEMPTION SUIT - SECOND SUIT - MAINTAINABILITY - MORTGAGE - DECREE - EXECUTION - LIMITATION - RES JUDICATA - TRANSFER OF PROPERTY ACT, SECTION 60 - PRIVY COUNCIL DECISION - JUDICIAL OPINION - PRINCIPLE OF LAW - EXTINGUISHMENT OF RIGHT TO REDEEM.
Fact of the Case:
Plaintiff-respondent Ambalal's grandfather gave a possessory mortgage of the suit shop to the defendant-appellant for Rs. 569/-. The original mortgagor took a further loan of Rs. 55/- against the security of this very property. On the death of the latter, his son Badarmal, brought a suit to redeem this property, and obtained a decree which was upheld by the highest court in the former Udaipur State, namely, Mehdrai Sabha, on the 28th February, 1933. By this decree it was declared on the strength of an award by an arbitrator to whom the matter was referred by common consent of the parties that Badarmal do obtain possession of the suit shop oh payment of a sum of Rs. 1375/-. No time was fixed for the payment of the decretal amount nor was it mentioned in the decree that the plaintiff mortgagor would be debarred from his right to redeem the mortgage in case he failed to pay the decretal amount. Badarmal died after the decree was passed leaving a minor son. No execution was taken of this decree, in March, 1947, the plaintiff respondent Ambalal deposited the decretal amount in Court and prayed that a final decree be passed in his favour. This prayer was repelled by the High Court of the former State of Rajasthan by its judgment dated the 1st July, 1948, wherein it was held that the decree passed by the Mehdraj Sabha in 1933 was itself final, and that as a period of more than 3 years had since passed, that decree was not capable of execution. Thereupon the said respondent sold his rights with respect to the suit property in favour of the other two plaintiffs respondents by a registered document dated the 13th March, 1947, wherein the plaintiff respondent Ambalal had still taken upon himself the responsibility to secure possession of the suit shop to the vendees. Eventually all the plaintiffs respondents instituted the present suit on the 4th May, 1949, claiming to redeem possession of the suit shop on the ground that the defendant Ambalal was still in possession of it as a mortgagee and that the plaintiffs were entitled in law to bring a second suit for redemption.
Finding of the Court:
The second suit for redemption filed by the plaintiffs respondents was maintainable notwithstanding the circumstance that the earlier suit filed by the mortgagor had resulted in a decree in 1933, which decree had not been executed and any execution thereof had been held to be barred by time.
Issues: Whether the second suit for redemption is barred by the principle of res judicata and/or the merger of the original cause of action in a decree which had become barred by time.
Ratio Decidendi: 1. The right to redeem is an incident of a subsisting mortgage and is inseparable from it. The right subsists until it is properly and effectively extinguished, which can only take place either by act of the parties concerned or by a proper decree of the court. 2. A decree in a redemption suit does not extinguish the right to redeem unless it specifically provides for foreclosure in the event of default or declares that the mortgagor will be debarred from his right to redeem in case he fails to exercise the right of redemption. 3. A second suit for redemption is maintainable even if the first suit has culminated in a decree, and the decree has been allowed to remain unexecuted and become barred by time, provided the earlier decree did not extinguish the mortgagor's right to redeem. 4. The principle of res judicata does not bar a second suit for redemption unless the earlier decree effectively extinguished the right to redeem.
Final Decision: The appeal was dismissed, and the second suit for redemption was held to be maintainable.
MODI, J.
( 1 ) THIS is a Letters Patent Appeal by the defendant Ambalal against the judgment of a learned. single Judge dated the 16th February, 1954, affirming a decree of the district Judge, Udaipur, for redemption of a mortgage.
( 2 ) THE facts leading up to this appeal may be shortly stated as follows. The plaintiff-respondent Ambalals grand-father gave a possessory mortgage of the suit shop to the defendant-appellant for Rs. 569/-on Asad Vadi 10, Smt. 1975. The original mortgagor took a further loan of Rs. 55/ against the security of this very property. On the death of the latter, his son Badarmal, brought a suit to redeem this property, and obtained a decree which was upheld by the highest court in the former Udaipur State, namely, Mehdrai Sabha, on the 28th February, 1933. By this decree it was declared on the strength of an award by an arbitrator to whom the matter was referred by common consent of the parties that Badarmal do obtain possession of the suit shop oh payment of a sum of Rs. 1375/ -. It should be noted that no time was fixed for the payment of the decretal amount nor was it mentioned in the decree that the plaintiff mortgagor would be debarred from his right to redeem the mortgage in case he failed to pay the decretal amount. It appears that Badarmal died after the decree was passed leaving a minor son. Anyhow, no execution was taken of this decree, in March, 1947, the plaintiff respondent Ambalal deposited the decretal amount in Court and prayed that a final decree be passed in his favour. This prayer was repelled by the High Court of the former State of Rajasthan by its judgment dated the 1st July, 1948, wherein it was held that the decree passed by the Mehdraj Sabha in 1933 was itself final, and that as a period of more than 3 years had since passed, that decree was not capable of execution. Thereupon the said respondent sold his rights with respect to the suit property in favour of the other two plaintiffs respondents by a registered document dated the 13th March, 1947, wherein the plaintiff respondent Ambalal had still taken upon himself the responsibility to secure possession of the suit shop to the vendees. Eventually all the plaintiffs respondents instituted the present suit on the 4th May, 1949, claiming to redeem possession of the suit shop on the ground that the defendant Ambalal was still in possession of it as a mortgagee and that the plaintiffs were entitled in law to bring a second suit for redemption. The defendant resisted the suit and raised a number of pleas; but the only plea which is relevant for the purposes of the present appeal and to which it is necessary to refer was and is that the suit of the plaintiffs was barred inasmuch as an earlier suit for redemption had been decreed but the decree had been allowed to become time barred and so a second suit was not maintainable. The trial Court repelled the aforesaid plea and decreed the plaintiffs suit and allowed the plaintiffs to redeem the shop within six months of the date of the decree, failing which the defendant appellant was directed to pray for a final decree that the plaintiffs be debarred for ever from redeeming the property.
( 3 ) APPEALS from the above decree were taken in due course to the District Judge and a learned single Judge of this Court, and were dismissed, and the judgment of the trial Court was affirmed. The judgment of the learned single Judge was announced on the 16th February, 1954. Learned counsel for the appellant made an oral prayer at the very time the judgment was announced that leave be granted for a special appeal. It appears that he also made a written application on the same day. This application, however, came to be disposed of on the 13th August, 1954, and leave was granted. The appeal was actually filed in this Court On the 25th August, 1954, and an application under Section 5 of the Limitation Act was also filed for condonation of the delay " in filing this appeal from the 14th August, 19
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