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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 ..... be recovered. The Bank tried to proceed against the mortgaged properties in execution. The appellant resisted by pointing out that there was no decree on the mortgage and the bank could, if at all, only attach the properties and could not sell it straightaway. That objection was upheld. The Bank thereupon instituted the present suit, O.S. No. 35 of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s why Order XLI Rule 33 of the Code or the principle embodied therein has to be invoked in the case, since the plaintiff Bank had filed an appeal against the decree dismissing its suit and was claiming the relief claimed in the suit.. 7. The High Court, in our view, was clearly in error in holding that the appellant not having filed a memorandum of cross-objections 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 chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soning of the High Court is therefore unsustainable. 9. Now, we come to the merit of the contention of the appellant that the present suit is hit by Order II Rule 2 of the Code in view of the fact that the plaintiff omitted to claim relief based on the mortgage, in the earlier suit O.S. No. 131 of 1984. Obviously, the burden to establish this plea was on the appellant. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. That apart, the cause of action for recovery of money based on a medium term loan transaction simpliciter or in enforcement of the hypothecation of the bus available in the present case, is a cause of action different from the cause of action arising out of an equitable mortgage, though the ultimate relief that the plaintiff Bank is entitled to is the recovery of 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 disti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not have been entertained at all by the trial court because the pleadings in civil suit No. 28 of 1950 were not filed by the appellant in support of this plea(ii) In order that a plea of a bar under O. 2. r. 2(3) of the Code should succeed the defendant who raises the plea must make out (i) that the second suit was in respect of the same cause of action as that 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 Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeded to grant the plaintiff Bank a decree for the suit amount based on the equitable mortgage. We were taken through Exhibits D1 to D4 and even a fresh document attempted to be marked in this Court along with its counter affidavit by the Bank. On going through the said documents, the other evidence and the reasoning adopted by the trial court, we are satisfied that there is no evidence to show that there was a tripartite agreement on the basis of which the appellant could disclaim liability based on it. It is seen that the appellant has not even examined Fernandes in support of the plea of the tripartite arrangement and the taking over of the liability of the appellant, by him. In this situation, we see no reason to uphold the plea of the appellant that the liability has been transferred to Fernandes at the instance of the Bank and that the appellant was no more liable for the plaint amount. 16. Thus, on a consideration of all the relevant aspects, we are satisfied that the High Court was correct in granting the Bank a decree in the suit. There is therefore no reason to interfere with that decree. We therefore confirm the judgment and decree of the High Court and dismiss this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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