JUDGMENT

Ryves, J. - In this appeal two important and difficulty points of law arise, and, our attention has been drawn to a number of decisions of the various High Courts in India, more or less relevant. I think, however, that we are bound by two Full Bench decisions of this Court, and, therefore, need not consider nor discuss any other cases.

2. The facts are as follows, so far as they are relevant:The father of the present plaintiffs, brought a suit in 1905 in the court of the Munsif of Ghaziabad to redeem the simple mortgage now in suit, and obtained a decree for redemption on payment of Rs. 2,647-11-2 within six months of the date of the decree. The decree went on to say, "otherwise the suit, will be considered dismissed."

3. The money was not paid and the defendants recovered their costs. Nothing further was done until the present plaintiffs brought this suit in the court of the Subordinate Judge of Meerut to redeem the same mortgage on payment of Rs. 2,647-11-2 (as found due in the previous suit). The defendants to this suit were defendants in the previous suit or their transferees.

4. Two main defences were raised: ILR (1921) All. 638 that this suit was barred by the rule of res judicata; ILR (1901) All. 44 that, no previous tender having been made, it was premature.

5. Both these contentions were upheld by the two lower courts, which dismissed the suit. Hence this appeal. Both findings of law are challenged in appeal.

6. The second point can be disposed of at once. The recent Full Bench case, Raghunandan Rai v. Raghunandan Pande ILR (1921) All. 638 (which was decided subsequently to the decision of the lower courts), lays down that a tender u/s 83 of the Transfer of Property Act is not a necessary condition precedent to a suit for redemption.

7. There remains the first point. Did the decree in the previous suit extinguish the mortgage, or can the plaintiffs, even if it did not, maintain this suit in the face of the previous decree? This puts the defendants case at its broadest. It seems to me that, so far as we are concerned, we are bound by the Full Bench ruling in Sita Ram v. Madho Lal ILR (1901) All. 44 and must be guided by that decision if it is applicable.

8. It is true that the mortgage there was usufructuary, whereas here it is simple. I do not think this, in any way, affects the ratio decidendi of the ruling. In David Hay v. Raziuddin ILR (1897) All. 202 the mortgage, was also usufructuary, but the, learned Judges who decided that case were at pains to point out that this circumstance was not considered by them as material to the question of law which they decided. It was this ruling which necessitated the Full Bench, in order to consider whether it was correct, and the Full Bench definitely overruled it. Incidentally I may note that one of the grounds on which the decision in Hay's case was based, and which was repeated here, was that the Legislature contemplated that there should be one suit, and only one, for redemption. This view, which prevailed in this Court for some time, was held to be untenable by the Full Bench.

9. The question referred to the Full Bench was quite general. Knox, A.C.J., in the opening of his judgment, says:

What we have now to consider and determine is whether a mortgagor who has obtained a decree for redemption, which does not contain a provision that if payment is not made on the date fixed by the Court, the mortgagor shall be absolutely debarred of all right to redeem the property, and who has not enforced that decree and has not paid in the decretal amount within the time, can subsequently bring a second suit for redemption of the mortgage in respect of which such decree was obtained. pp. 47-48.

10. The decree in the Full Bench case was unusually worded. It provided that on default of payment "the judgment should, after the expiry of the time fixed in the decree, be considered "ma adum"--translated by Knox, A.C.J., as "annihilated," and by Banerji and Aikman, JJ., as "non-existent."

11. The