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TMI Blog2007 (1) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... 1993, for enforcement of the equitable mortgage. The appellant resisted the suit by pleading that the suit was barred by Order II Rule 2 of the Code of Civil Procedure, that the transaction of loan stood satisfied by a tripartite arrangement and transfer of the vehicle to one Fernandes, that there was no valid equitable mortgage created and no amount could be recovered from him based on it and that the suit was barred by limitation. 3. The trial court held that the suit was not hit by Order II Rule 2 of the Code. It also held that the appellant has not proved that the loan transaction has come to an end by the claim being satisfied. But, it dismissed the suit holding that the suit was barred by limitation. It also held that there was no creation of a valid equitable mortgage since the memorandum in that behalf was not registered. The Bank filed an appeal in the High Court. The High Court held that the memorandum did not require registration and that a valid and enforceable equitable mortgage was created. The suit was held to be in time. It held that the suit was hit by Order II Rule 2 of the Code. But, since the appellant had not challenged the finding of the trial court that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions in terms of Order XLI Rule 22 of the Code, could not challenge the finding of the trial court that the suit was not barred by Order II Rule 2 of the Code. The respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered by the trial court against himself. For supporting the decree passed by the trial court, it is not necessary for a respondent in the appeal, to file a memorandum of cross- objections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour. A memorandum of cross-objections is needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge. We have therefore no hesitation in accepting the submission of the learned counsel for the appellant that the High Court was in error in proceeding on the basis that the appellant not having filed a memorandum of cross-objections, was not entitled to canvass the correctness of the finding on the bar of Order II Rule 2 rendered by the trial court. 8. We als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. The appellant has not even cared to produce the plaint in the earlier suit to show what exactly was the cause of action put in suit by the Bank in that suit. That the production of pleadings is a must is clear from the decisions of this Court in Gurbux Singh Vs. Bhooralal [(1964) 7 S.C.R. 831] and M/s Bengal Waterproof Limited Vs. M/s Bombay Waterproof Manufacturing Co. & Anr. [(1996) Supp. 8 S.C.R. 695]. From the present plaint, especially paragraphs 10 to 12 thereof, it is seen that the Bank had earlier sued for recovery of the loan with interest thereon as a money suit. No relief was claimed for recovery of the money on the foot of the equitable mortgage. In that suit, the Bank appears to have attempted in execution, to bring the mortgaged properties to sale. The appellant had objected that the suit not being on the mortgage, the mortgaged properties could not be sold in execution without an attachment. That objection was upheld. The Bank was therefore suing in enforcement of the mortgage by deposit of title deeds by the appellant. 10. From this, it is not possible to say that the present claim of the plaintiff Bank has arisen out of the same cause of action that was put f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the term loan that was granted to the appellant. On the scope of Order II Rule 2, the Privy Council in Payana Reena Saminatha & Anr. Vs. Pana Lana Palaniappa [XLI Indian Appeals 142] has held that Order II Rule 2 is directed to securing an exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they may arise from the same transactions. In Mohammad Khalil Khan & Ors. Vs. Mahbub Ali Mian & ors. [A.I.R. 1949 Privy Council 78 (75 Indian Appeals 121)], the Privy Council has summarised the principle thus: "The principles laid down in the cases thus far discussed may be thus summarised: (1) The correct test in cases falling under O.2, R.2, is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit." Moonshee Buzloor Ruheem V. Shumsunnissa Begum, (1867-11 M.I.A. 551 : 2 Sar. 259 P.C.) (supra) (2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. Read V. Brown, (1889-22 Q.B.D. 128 : 58 L.J.Q.B. 120) (supra) (3) I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which the previous suit was based; (ii) that in respect of that cause of action the plaintiff was entitled to more than one relief (iii) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. It is not necessary to multiply authorities except to notice that the decisions in Sidramappa Vs. Rajashetty & Ors. [(1970) 3 S.C.R. 319], Deva Ram & Anr. Vs. Ishwar Chand & Anr. [(1995) Supp. 4 S.C.R. 369] and State of Maharashtra & Anr. Vs. M/s National Construction Company, Bombay and Anr. [(1996) 1 S.C.R. 293] have reiterated and re-emphasized this principle. 14. Applying the test so laid down, it is not possible to come to the conclusion that the suit to enforce the equitable mortgage is hit by Order II Rule 2 of the Code in view of the earlier suit for recovery of the mid term loan, especially in the context of Order XXXIV Rule 14 of the Code. The two causes of action are different, though they might have been parts of the same transaction. Even otherwise, Order XXXIV rule 14 read with rule 15 removes the bar if any that may be attracted by virtue of Order II Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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