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Issues:
- Whether the second suit for redemption is barred due to the abatement of earlier suits. - Interpretation of Order XXII, Rule 9 in relation to Section 60 of the Transfer of Property Act. - Application of res judicata in redemption suits. - Comparison of various judicial decisions on the right to redeem mortgaged property. Analysis: 1. The case involved a mortgage executed in 1895, leading to a suit filed by the mortgagee in 1903, which was later declared as a mortgage rather than a sale. Subsequently, a suit for redemption was filed in 1904, but abated in 1905. The current suit, filed by the heirs of the original mortgagor, raised the question of whether it was barred due to the abatement of the earlier suits. 2. The main contention was whether the second suit for redemption was barred under Order XXII, Rule 9, which states that no fresh suit shall be brought on the same cause of action if a previous suit abates. The argument was based on the premise that both suits were for redemption and thus considered the same cause of action. 3. Section 60 of the Transfer of Property Act confers the right to redeem upon the mortgagor until extinguished by a decree of the Court or by the act of the parties. The court emphasized that the specific provisions of Section 60 override the general provisions of Order XXII, Rule 9 of the Civil Procedure Code. 4. Previous judicial decisions were cited to support the interpretation that the right to redeem is a continuing right until extinguished as per Section 60. The court highlighted the importance of the mortgagor's entitlement to enforce this right as long as the relationship of mortgagor and mortgagee exists. 5. The court referred to a full bench decision where it was held that the cause of action in a subsequent suit for redemption is different from the prior suit, emphasizing that the right to redeem is continuous until properly extinguished. 6. Various judicial precedents were compared, including a Privy Council decision, to support the view that the right of redemption cannot be taken away except as provided by Section 60 of the Transfer of Property Act. The court concluded that the abatement of a suit does not constitute a decree extinguishing the right of redemption. 7. Ultimately, the court held that the plaintiff's current suit for redemption was maintainable, affirming the decision of the lower court. The appeal was dismissed with costs, emphasizing the primacy of Section 60 over procedural rules like Order XXII, Rule 9.
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