The cause of action of the mortgagee and the sub-mortgagee were different, and the decree in the previous suit did not preclude the original mortgagee from asserting his rights.

Madhavan Nair, J.

1. These are two connected appeals. The plaintiff is the same in the two suits out of which these appeals arise. The first defendant in the two suits are brothers. They had another brother. Each of these three brothers executed a hypothecation bond for Rs. 3,000 in favour of one, Usain Ali Rowther. The hypothecation bonds involved in these two suits are Exhibits A and B--two of the three hypothecation bonds. The mortgagee, Usain Ali, sub-mortgaged his mortgage rights under the three mortgages in favour of the fifth defendant, a Chetti firm under Ex. C. The sub-mortgage was for an amount not exceeding Rs. 9,000 that may be borrowed from the firm. The Chetti firm instituted O.S. No. 34 of 1921, a suit for the sale of the hypothecated properties, in exercise of its rights. The present plaintiffs predecessor, Usain Ali, was the first defendant in the suit, and the mortgagors were defendants 3 and 4. It was found in that suit that the mortgages and sub-mortgages were subsisting, and a decree was passed in favour of the plaintiff therein, for the amount sued for. In that suit, the mortgagee as well as the mortgagors, were ex parte. That decree was not executed by the sub-mortgagee plaintiff and is at present subsisting. The original mortgagee having died, his interests in the two mortgages were assigned over to the present plaintiff, and these two suits have been instituted by him for the recovery of his mortgage amount. Various issues were raised in the case. One of the issues was " whether the suit is barred by reason of the decree in O.S. No. 34 of 1921 on the file of this Court". On this issue, the learned Judge held that the suit was barred and dismissed the suit.

2. In this appeal, the question argued relates to this finding. Counsel for the appellant contends that the suit is not barred by reason of that decree. The decision of the lower Court is based upon various considerations. One of the main grounds of justification is this, namely, that the cause of action of the mortgagee, the present plaintiff, and of the sub-mortgagee who was the plaintiff in the original suit is one and the same and that the cause of action was exhausted by the previous suit and the decree, and it cannot therefore be agitated again in a subsequent suit. With this opinion we cannot agree. No doubt the sub-mortgage is an assignment of the mortgage, but in this case it must be observed that the mortgages amounted to Rs. 9,000, and what was sub-mortgaged was only a sum up to Rs. 9,000 and the exact amount involved in the previous suit, O.S. No. 34 of 1921, was only Rs. 958. So, on the facts, it is clear that there is no complete assignment of the cause of action of the mortgagee in favour of the sub-mortgagee. Apart from this, as we have said, it is clear that the causes of action of the two suits are different. (See Muthukrishnien v. Viraraghava Iyer (1912)23MLJ430 .) The learned Judge after referring to the decision in Muthu Vijia Raghunatha Ramachandra Vacha Mahali Thurai v. Venkatachallam Chetti (1896) 6 M.L.J. 235: I.L.R. 20 Mad. 35 which says that the sub-mortgagee can bring a suit for the sale of the mortgaged property, says that:

Muthu Vijia Raghunatha Ramachandra Vacha Mahali Thurai v. Venkatachallam Chetti (1896) 6 M.L.J. 235: I.L.R. 20 Mad. 35 did not decide that a sub-mortgagee could sue to recover the debt due to his mortgagor, but only that the sub-mortgagee could in suing to recover his own debt bring to sale the properties mortgaged to his mortgagor instead of merely bringing to sale his mortgagors interest. His interest in what was mortgaged to his mortgagor was held sufficient to entitle him to sell what was mortgaged to his mortgagor. It would be going a great deal further to hold that the sub-mortgagee could sue on the cause of action open to his mortgagor to recover the debt due to the latter.

3. In the present case, it is clear that the sub-mortgagees claim being only for Rs. 3,400 and odd could never have sue