1. This second appeal is directed against the concurrent decisions of the Courts below decreeing the plaintiffs' suit.

2. The plaintiffs are Telu Ram and Daya Ram. There are 20 defendants in number. Defendants 1 to 4 are Manak Chand, Hem Chand, Subash Chand and Deepak Kumar, sons of Sri Chand. The plaintiffs and defendants 1 to 4 were the co-sharers in properties, including the suit property, for facility of reference, hereinafter mentioned as Unit No. I and Unit No. II. In Unit No. I, the plaintiffs and defendants had equal share and in Unit No. II, the plaintiffs had one-third share and the defendants two-thirds share. The plaintiffs effected two mortgages in 1943 in September and December in favour of Mst. Sunhari Devi, who is the predecessor-in-interest of defendants 1 to 4. In September, 1948, a third mortgage was executed whereby the first two mortgages were discharged. However, the terms of all tile three mortgages are similar. The rent of the properties mortgaged was to counter-balance the interest. The defendant-mortgagees, who were also co-sharers of the properties, had in ducted defendants 5 to 20 as tenants in these two units; and at the time of 1948 mortgage, the defendants 5 to 20 were in possession of these two units as tenants under the mortgagees.

As a result of the suit between the plain tiffs and defendants 1 to 4 for partition of the properties including the mortgaged properties, the properties were divided by metes and bounds. The properties in dispute fall to the share of the plaintiffs subject to the mortgage in favour of the defendants. The defendants then brought a suit for sale of the mortgaged property. A preliminary decree was passed and, thereafter, a final decree. In execution of the final decree, a part of the mortgaged property was sold. But before the other part could be sold, the plaintiffs paid the balance of the decretal amount in Court with the result that the remaining part of the mortgaged property was not sold; and the final decree for tale of the mortgaged property was fully satisfied.

3. On the 5th of January, 1963, the present suit for possession by redemption has been filed by the plaintiffs. They have impleaded the erstwhile mortgagees as defendants 1 to 4 and the tenants of the disputed properties as defendants 5 to 20. The erstwhile mortgagees confessed judgment. The tenants only contested the suit. Various pleas were raised by the tenants; but one of the pleas was that the present suit was not maintainable, or, in other words, that the suit did not lie in the present form. This issue was decided by both the Courts below against the defendants. Before the trial Court, the objection precisely was that the mortgage debt had been paid in full and that the plaintiffs, therefore, could not bring a suit for redemption; but could only bring a suit for recovery of possession. It appears that this matter was not agitated in the lower appellate Court. The defendants 5 to 20, who are dissatisfied with the decision of the Courts below, have come up in second appeal.

4. Mr. D. N. Aggarwal, learned counsel for the appellants, has raised the contention that no suit for redemption is competent. This contention is met by the learned counsel for the respondents on the ground that this matter was not agitated In the lower appellate Court. As the matter raised is purely one of law, neither the admission of the counsel nor his non-urging of the point in the lower appellate Court will bind the appellants. We have, therefore, permitted the learned counsel to urge the same. Moreover, this question goes to the root of the matter; and the facts, on which the decision of this question hinges, are fully set out in the plaint and no new fact has to be found. Those facts, we have already detailed earlier. The question, that arises for determination, is, whether after a final decree for sale on the basis of a mortgage has been passed, the mortgagor can sue for partial or total redemption under Section 60 of the Transfer of Property Act? Mr. G. C. Mittal, who appears for the respondents, contends that the mortgagor can do so; whereas Mr. D. N. Aggarwal, counsel for the appellants, contends that the mortgagor cannot do so; but his remedies are under Order 34, Rule 5, Civil Procedure Code. This matter is not res integra and is fully concluded by a Division Bench authority of the Patna High Court in Sheo Narain Sah v. Mt. Deolochan Kuer, AIR 1948 Pat 208. We are in respectful agreement with the rule laid down in this case. While dealing with this question, Mr. Justice Bennetl observed as follows:

. . . . The first debatable issue in this contention seems to me to be whether the right of partial redemption of a co-mortgagor, a party to the suit, survives under Order 34, Rule 5, Civil P. C., until confirmation of the sale made under a final decree for sale or whether the final decree for sale operates to extinguish the right of partial redemption. The mortgagor's right of redemption is a statutory right governed by Section 60, Transfer of Property Act, 1882. The wording of the final paragraph of that section shows clearly that the right of partial redemption thereby recognized is a right corresponding in all essential respects to the right to redeem conferred upon the mortgagor by para 1 thereof. But this right is expressly stated as a right to redeem the mortgage money and the mortgage money is referred to in Section 58(a) of the Act as

These monies are commonly referred to as the mortgage debt and there is no doubt whatever that, upon the ordinary rules as to res judicata, the mortgage debt merges in the decretal debt, and that that is so under the provisions of Order 34, Civil P. C., is clear from the judgment of their Lordships of the Privy Council in AIR 1936 PC 63. That being so, the moment the final decree is passed, there is no longer any mortgage debt or mortgage money which the mortgagor can pay or tender to the mortgagee. That this is so follows conclusively from the consideration of the posision as it would be if that were not so. In that event the mortgagor who, under the form of decree which the Court is directed to pass by the terms of Order 34, Rule 4(1) and Rule 5(3), is entitled to be paid thereunder, in addition to the mortgage money, the monies referred to in Order 34 Rule 2 (1) (a) (ii) and (iii), would find himself liable under Section 60, Transfer of Property Act, 1882, to be deprived of the full benefit of his decree and to lose his security against payment only of the mortgage money.

The Legislature cannot be taken to have intended this result; nor, indeed, does this result Sow from the application of the ordinary canons of construction to the statutory provisions in question. Order 34, Rule 5, must be read together with Section 60, Transfer of Property Act, if possible, and, if it cannot, then Order 34, Rule 5, the latter statutory enactment, which takes effect as if enacted in the Civil Procedure Code itself, will prevail. Not only can these two provisions be read together, but when Section 60, Transfer of Property Act, 1882, is given what I understand as above-mentioned to be its ordinary meaning, it in no way conflicts with the provisions of Order 34, Rule 5. It follows from these considerations that not only is the mortgage debt merged in the decretal debt, but also firstly, that as between the mortgagee and the mortgagors parties to the suit for sale, the mortgage security merges in the decree and is replaced by the security of the order for sale which merger is also in accordance with the ordinary principles of res judicata, the lower mortgage security which the mortgagee necessarily relies upon in his suit for sale merging in the higher security of the resulting decree; and secondly, that the right to redeem confer-ed by Section 60, Transfer of Property Act, 1882, including the corresponding right of partial redemption thereby conferred, is extinguished by the final decree passed under Order 34, Rule 5 (3) and that the mortgagor and so each co-mortgagor receives in exchange the right to redeem granted by Order 34, Rule 5 (1), namely, right to redeem the whole property by payment of the full decretal debt, the relationship between the parties as the use in Order 34. Rule 5, Civil P. C., of the words 'plaintiff and 'defendant' themselves also indicates being no longer that of mortgagor and mortgagee but that of judgment' debtor and judgment-creditor governed by the decree and the terms of Order 34, Rule 5, Civil P.C, There is nothing inequitable in the right of partial redemption being so extinguished, since in the suit for sale each co-mortgagor could have cross-claimed for partial redemption. . . Mr. G. C. Mittal argues that this case merely dealt with the right of partial redemption. But this is not so because the observation quoted above clearly show that their Lordship were dealing both with total and partial redemption. No authority to the contrary has been brought to our notice. Moreover, the rules under Order 34 of the Code of Civil Procedure indicate that once a final decree for sale in a mortgage suit has been passed, the rights of the parties get merged in that decree and have to be redressed in the manner provided in Order 34.

5. Mr. Mittal's next contention is that we should treat the suit for redemption as a suit simpliciter for possession. We are unable to do so. The very basis of the suit was that there was a mortgage, which had been paid off: and as the possession had not been delivered to the plaintiffs, their right of redemption still subsisted. As already held, there being no right of redemption subsisting in view of the fatal decree for sale in the mortgage suit, we cannot treat the redemption suit as a suit for possession. As a matter of fact, the question may still arise whether in view of the final decree, a separate suit for possession would lie. But, as at present advised, we do not propose hazarding any opinion on this question.

6. The next question, that has been raised by Mr. Mittal is that only defendants 1 to 4 could raise this objection, namely, that no suit for redemption is competent. We are unable to agree with this contention. Defendants 5 to 20 derived title from defendants I to 4 and they could defeat the suit if the suit could have been defeated on that ground by defendants 1 to 4. The mere fact that defendants 1 to 4 are siding with the plaintiffs will not affect the matter.

7. In the last resort, Mr. Mittal has railed the contention that he should be permitted to amend the plaint so as to convert the suit for redemption into a suit for possession. As the two causes of action are different we see no reason to allow this request, especially when this point was contested in the trial Court.

8. For the reasons recorded above, we set aside the judgments and decrees of the Courts below and dismiss the plaintiffs' suit, but there will be no order as to costs.

Gurdev Singh, J.

9. I agree.