JUDGMENT

Bajpai, J. - The Plaintiff decree-holder is the Appellant. It is necessary to state the facts in some detail. On the 11th of September 1915 one Mst. Hanifa executed a mortgage in favour of Najabat Ali, the present Appellant, hi 1928 Najabat Ali brought a suit on the basis of this mortgage and he impleaded as Defendants to the suit the heirs of Mst. Hanifa, the original executant. These heirs are the Respondents to the present appeal as well. I have read the plaint of that suit and it is clear that the Plaintiff wanted the amount due under the mortgage by foreclosure of the mortgage property or by sale of the mortgaged property. The learned Munsif who decided that suit was of the opinion that the mortgage was an anomalous mortgage if it was a mortgage at all and that the Plaintiff was not entitled to a decree for foreclosure on the ground that the amount in suit was not charged upon the mortgaged property. The Plaintiff therefore was not given a decree either for foreclosure or for sale but was given a simple money decree for the recovery of Rs. 350. It is true that there is no discussion in the judgment of the Court below on the question as to whether the Plaintiff was entitled to a decree for sale on the basis of the mortgage but the plaint undoubtedly sought for reliefs in the alternative and the decree that was given was a simple money decree upon the finding that the amount in suit was not charged upon the mortgaged property.

2. After having obtained this decree the Plaintiff sought to execute the same by attachment of the property which was covered by the document of 1915 and the plea that is taken on behalf of the Defendant judgment-debtors and which has found favour with the Courts below is that the decree-holder is not entitled to proceed by reason of Order 34, Rule 14. I have got to see whether that provision stands in the way of the decree-holder.

3. It is contended by the Appellant that the mortgage does not subsist; indeed his case is that the finding in the suit itself inter partes was that the amount was not charged upon the mortgaged property. If the Plaintiff were to bring a suit upon the basis of the document of 1915 and if he were to pray for foreclosure he would be met by the plea that this relief was definitely denied to him, because the Munsif had observed in the suit that "the mortgage is anomalous and so there can be no decree for foreclosure". In spite of the saving clause in Rule 14 that the mortgagee may institute such suit notwithstanding anything contained in Order 2, Rule 2 if a fresh suit is brought, the Defendants would be entitled to say that the Plaintiff is barred by a direct decision in the former suit to the effect that no decree for foreclosure can be given and the saving clause would not be of any help. If however the Plaintiff were now to bring a suit for sale he would still be met by the plea that there was a distinct relief for sale in the former suit and that relief not having been granted to him, it must be deemed under Explanation 5 to Section 11 that the relief was refused to him and the Plaintiff will be met by the plea of res judicata and once again the safeguard contained in Rule 14 would not be available to him. It was not the intention of the Legislature that the Plaintiff should be driven to another suit by reason of Order 34, Rule 14 when it is certain that such a suit would be dismissed. It is clear in the present case that the mortgage security no longer subsists and all the rights available to the Plaintiff under that document were made the subject matter of a suit and the decision of the suit was that all that the Plaintiff was entitled was to obtain a simple money decree for Rs. 350. It is true that Rule 14 of Order 34 has been enacted in the interest of the mortgagors and the reason is that their right of redemption should not be lost by a circuitous method. There are certain safeguards provided in mortgage suits and the idea was that such safeguards should be mai