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TMI Blog1947 (4) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession of the property, if she paid a specified sum of interest to Khandu. In default, Khandu was to get possession of the property as mortgagee. 2. In August 1904 Gamabai filed a suit for redemption. While the suit was pending, Gamabai died, and her heirs were not brought on record, with the result that the suit abated in June 1905. The present suit was filed by the grandsons of Gamabai for redemption, and the only question that survives in this second appeal is whether this suit is barred by reason of the fact that the earlier suits for redemption abated in June 1905. 3. Now, under Order XXII, Rule 9, where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. It is contende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight upon a party, it must intend that that right should be an enforceable right. Therefore, in our opinion, the general provisions of the Civil Procedure Code, as contained in Order XXII, Rule 9, are to that extent overridden by the specific provisions of Section 60 of the Transfer of Property Act. So long as the relationship of mortgagor and mortgagee continues, and so long as the right to redeem has not been extinguished by a decree of the Court, or by the act of the parties, the mortgagor is entitled to go to a Court of law to enforce his right. Of course, the position with regard to limitation is different, because the Indian Limitation Act expressly provides that the period of limitation for redemption suits is sixty years. 5. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redemption. It was contended that the second suit was barred on the ground of res judicata both under Section 11 and Section 47 of the Code. Scott C.J. and Mr. Justice Macleod (Mr. Justice Shah dissenting) took the view that it was not so barred. Chief Justice Scott took the view that really in the two suits for redemption the issues are not the same, because what is to be decided in each case is what is the amount due which the mortgagor has got to pay in order to redeem the property. Sir Norman Macleod also seems to take the view that the cause of action in a subsequent suit for redemption is different from the cause of action in the prior suit, because he takes the view that the right to redeem is a continuing right, and the only questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. 9. Mr. Shah has strongly relied on the decision of the Privy Council in Thakur Shankar Baksh v. Daya Shankar (1887) L.R. 61 I.A. 362 : S.C. 36 Bom. L.R. 1189. There the Privy Council held that the subsequent suit for redemption was barred, inasmuch as the earlier suit had been dismissed for default. In the first place, the attention of the Privy Council does not seem to have been drawn to the provisions of the law which corresponded to Section 60 of the Transfer of Property Act and the Privy Council has not considered that section at all. Further, it also seems that the Privy Council based its decision on the fact that in both the suits the amount which the mortgagor said he was liable to pay to the mortgagee was identical, and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Lordships thought of the two suits. According to them, the issues in the two suits were entirely different. In the first suit the issues were (1) whether the mortgagors were then entitled to redeem; and (2) the amount then to be paid if redemption then took place; and the issues in the subsequent suit were (1) whether the right to redeem existed at the time of the suit, and (2) the amount to be paid if redemption took place at the time of the subsequent suit. Their Lordships of the Privy Council further pointed out that, unless they were satisfied that the decree in the first suit extinguished the right to redeem, no question of res judicata Would arise. Therefore, what their Lordships proceeded to do was to construe the decree in order t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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