Charles Arnold White, C.J.

1. The question which has been referred in this case is whether, notwithstanding the institution, of a suit and the passing of a decree for redemption, a subsequent suit for redemption of the same mortgage can be brought when the decree in the former suit lifts not been executed. I take it that for the purposes of this reference the words "when the decree in the former suit has not been executed" mean when the order provided for by Section 93 of the Transfer of Property Act for foreclosing the right to redeem, or for sale, as the case may be, has not been made.

2. The view which has been generally adopted by this High Court, though the decisions are not altogether uniform, is that a second suit will lie. The Bombay and Allahabad High Court have held otherwise.

3. The answer to the question appears to me to depend not upon whether or not at the time of the bringing of the second suit the relation of mortgagor and mortgagee subsists between the parties, but upon whether, assuming that the right subsists, the mortgagor is precluded, by the operation of the doctrine of res judicata by reason of the adjudication which lie has already obtained, from bringing a second suit.

4. On the construction of Sections 92 and 93 of the Transfer of Property Act, it is perfectly clear that the equity of redemption remains unforeclosed and the relation of mortgagor and mortgagee continues until the order absolute which is contemplated by Section 93 is made. Section 92 requires the Court if the plaintiff succeeds (i.e., if the plaintiff establishes that he is entitled to the decree which by Section 92 the Court is empowered to make) to order that, ii the plaintiff pays in pursuance of the order of the Court, certain things shall be done, and that if he does not pay, certain legal consequences shall ensue. Section 93 provides that, if: payment in pursuance of the order of the Court has not been made, the defendant may apply, and the Court shall order, that the mortgaged property be sold or the plaintiffs right to redeem be foreclosed, as the case may be and the section expressly enacts that on the making of an order under the section the right to redeem and the security shall both be extinguished. If the right to redeem is only extinguished when an order is made under Section 93, it follows that the right is a subsisting right until the order is made. It does not, however, follow that the right is enforceable by means of a second redemption suit. It seems to me that though the right subsists, the remedy is barred by Section operation of the rule of law which is embodied in 92 of the Code of Civil Procedure. The legislature has laid down what is the matter in issue in a redemption suit. In order to succeed, the mortgagor has to show that he is entitled to a decree ordering that if he pays off the mortgage debt in pursuance, of the order of the Court, the mortgagee shall, re-transfer the property and if necessary, put him in possession?. The matter in issue is-aye or (sic) is the mortgagor entitled, to the decree which, if lie succeeds, the Court is required by Section 92 to make? The question whether a decree under Section 92 operates as res judicata as a final adjudication on the matter in issue between the same parties is, as it seems to me, entirely different from the question whether such a decree is in itself capable of execution without the order absolute which is contemplated by Section 93 having been made.

5. As regards the authorities, the view which has usually prevailed in this Presidency, as already observed, has been that a second suit will lie.

6. In the cases reported in Sami Achari v. Somasundara Acari I.L.R. 6 M. 119; Periandi v. Angaypa I.L.R. 7 M. 423 and Karuthasami v. Jagannatha I.L.R. 8 M. 478 where it was held that a second suit would lie, the decree in the first suit contained no direction that in default of payment by the mortgagor the equity of redemption should be foreclosed. In the case in whic