Filing of subsequent suit on different cause of action not a bar.

The plaintiff in a suit for recovery of mortgage money by sale of the mortgaged property, has preferred this second appeal, the Courts below having concurred in dismissing his suit as barred by limitation and barred under Order 2, rule 2, Civil Procedure Code.

The material facts now beyond controversy may be briefly set out. Defendants 2 to 4 in the suit, mortgaged with possession the property described as item one of the plaint schedule under Exhibit A-2 dated 23-8-1120 (M.E.) for 3000 fanams. The second item of the plaint schedule was given as additional security for the mortgage amount. On the same date, the mortgaged property was taken back on lease, at the rate of Rs. 3.30 per mensem and the mortgagors defendants 2 to 4 continued in possession of the property. On the failure of the defendants to pay rents accrued, the plaintiff filed in a suit O.S. No. 720 of 1121 on the file of the Additional District Court, Nagercoil, for the arrears of rent accrued till then and obtained a decree. The mortgagors then brought about an arrangement for the discharge of the mortgage Exhibit A-2 and satisfaction of the decree in O.S. No. 720 of 1121. On 18-5-1122, they executed the mortgage Exhibit A-3 dated 18-5-1122, in favour of the first defendant, reserving the amounts due under the mortgage Exhibit A-2 and the decree in O.S. No. 720 of 1121, with him for their discharge. On the same date, the first defendant’s sister on her own behalf and on behalf of the first defendant, who was then a minor for the moneys reserved under Exhibit A-3 executed a conveyance of another property of their own, by Exhibit A-6 in discharge of the amounts due to the plaintiff under the aforesaid mortgage and decree. Accepting the conveyance, the plaintiff entered satisfaction of the decree in O.S. No. 720 of 1121, and gave a discharge of the mortgage Exhibit B-2, granting the mortgagors defendant 2 to 4, the registered receipt Exhibit B-1 dated 28-5-1122. But in the suit O.S. No. 92 of 1121 on the file of the Additional District Munsif Court, Nagercoil, in which the plaintiff got himself impleaded under the provisions of conveyance in his favour to secure possession of the property conveyed to him, the sale in his favour and the mortgage in favour of the present first defendant, were rejected as not binding on the first defendant The conveyance Exhibit A-6 was set aside. The plaintiff had also filed another suit O.S. No. 278 of 1950 against the first defendant for recovery of the property on the strength of the sale-deed. That suit was also dismissed, the sale in favour of the plaintiff being set aside. The plaintiff preferred appeals, but failed in the appeals also, the appeals being dismissed on 19th August, 1958. Having failed to sustain the validity of the conveyance in his favour in consideration of which he gave a discharge of the mortgage and entered satisfaction of the decree, he instituted the suit O.S. No. 44 of 1959 on the file of the Additional District Munsif Court, Nagercoil for recovery of a sum of Rs. 829-25 nP. as and by way of damages. The parties to this suit were the present defendants 1 to 4, that is, the mortgagors defendants 2 to 4 and the fist defendant, whose transfer was set aside. The suit was dismissed and the appeal therefrom A.S. No. 178 of 1960 by the plaintiff also failed. The appellate Court while holding that a claim for damages in the circumstances was untenable observed:

“I therefore hold on point 1 that the mortgage of 23-8-1120 had not become extinguished by the reason of the execution of Exhibit A-3 and on point 2 that the original mortgage had become revived by reason of the decision in O.S. No. S2 of 1121 which set aside Exhibit A-3 and on point 3 that the remedy of the plaintiff is to file a separate suit on the original mortgage of 1120 to recover the mortgage amount together with interest......”

The learned Subordinate Judge further observed in the course of his judgment......

“it appears to me that the appel