1. This is a Letters Patent appeal by Abdul Shakur Khan, plaintiff, whose suit for sale on the basis of a mortgage has been decreed by the two lower Courts but has been dismissed by a learned single Judge of this Court. On 4th April 1915, Abdul Razzaq executed a simple mortgage in favour of Abdul Haq for Rs. 150 with 1 per cent per mensem interest. On 20th June 1921, the receiver of the estate of Abdul Haq insolvent sold the mortgagee rights to defendant 1 Mt. Rafiqunnissa. On 20th June 1922, Mt. Rafiqunnissa made a sub-mortgage of the mortgagee rights to the plaintiff for Rs. 200 at Re. 1-8-0 per cent per mensem.
2. In Suit No. 207 of 1925, the plaintiff sued as owner of the mortgagee rights under the mortgage of 4th April 1915, and based his suit on that mortgage. On 21st October 1926, the District Judge in first appeal dismissed the suit of the plaintiff on the following grounds:
The plaintiff in this case does not care to sue on foot of his mortgage and so his suit cannot lie. I therefore find that the suit as framed is not maintainable.
3. The plaintiff has now brought the present suit in his capacity of mortgagee of mortgagee rights under the mortgage of 4th April 1915. The learned single Judge of this Court has held that the present suit of the plaintiff is barred by the rule of res judicata, because in his former suit the plaintiff should have made his rights as mortgagee of mortgagee rights a ground of attack. He has thus applied Expl. 4 to Section 11, Civil P.C., against the plaintiff.
4. On the other hand it is alleged for the plaintiff that he is not barred by the rule of res judicata because the plaintiff in the present suit is not litigating under the same title under which he was litigating in the former suit. Section 11, Civil P.C. applies where the parties are "litigating under the same title." The learned advocate for the respondent alleges, on the other hand, that this matter of litigating under the same title must be governed by Expl. 4, and that the plaintiff ought to have litigated in his former suit under both titles, both of which might have been made grounds of attack. He has referred among other rulings to Imam Khan v. Ayub Khan [1897] 19 All. 517. In that case a plaintiff sued as an owner, and it was held that he was not an owner, and in a subsequent suit the plaintiff sued as a mortgagee. It was held that the subsequent suit was barred by the rule of res judicata because he should have sued in his former suit also in his capacity of mortgagee. But this decision does not at all consider the point raised by the expression "litigating under the same title" which is now contained in Section 11, and was contained in the corresponding Section 13 of the former Civil P.C. The learned Counsel for the respondents has further referred to a ruling of this Bench reported in Tamizuunissa Bibi v. Syed Muhammad Husain A.I.R. 1928 All. 714. In that case a person called T had sued for possession of certain property against a person called M, M had two capacities partly as a mortgagee and partly as a purchaser, of the rights of ownership. M did not plead in defence his right to remain in possession as usufructuary mortgagee and the suit was decreed finally against M in favour of T. Subsequently M brought a suit against T for possession on the grounds of the usufructuary mortgage in favour of M. This Bench held that the subsequent suit was barred by the rule of res judicata because in defence of the suit of T for possession M should have brought forward in defence each and every title under which M was entitled to retain possession. Now the present case differs fundamentally from the ruling quoted, because in the present case the plaintiff was a plaintiff in both suits and not a defendant in the former suit. A plaintiff need not set up in his suit each and every title under which he might claim. On the other hand a defendant against whom possession is claimed ought to set up each and every ground under which he is entitled to retain possession. Accordingly I consider that no authority has been shown for the proposition that the present plaintiff is barred by the rule of res judicata. It appears to me that the suit of the present plaintiff under the title of a mortgagee of the mortgagee rights under the mortgage of 1915 is a suit under an entirely different title from the suit formerly brought by the plaintiff as owner of the mortgagee rights under that mortgage. Accordingly I consider that the present plaintiff is not barred by Section 11, Civil P.C. No other ground except res judicata has been urged against the suit by the plaintiff. Accordingly I would allow this Letters Patent appeal with costs and restore the decree of the lower appellate Court.
Mukerji, J.
5. I entirely agree with my learned brother that the present appeal must be allowed. The facts are given in the judgment of my learned brother and I need only state them briefly for the purpose of my judgment. To start with: a simple mortgage of a certain property was made by one Abdul Razzaq in favour of one Abdul Haq on 4th April 1915. A sum of Rs. 150 was borrowed for a term of two years, and it was to be repaid after two years with interest at 12 per cent per annum. Abdul Haq the mortgagee was adjudged an insolvent and the receiver sold all his interest as a mortgagee in the property to Mt. Rafiqunnissa, defendant 1 in the case. She happens to be the widow of Abdul Razzaq but that fact has no material bearing on this case. Mt. Rafiqunnissa borrowed money from the present plaintiff, and she made a sub-mortgage of her interest in the property as a simple mortgagee in consideration of a sum of Rs. 200 on 20th June 1922. She agreed to pay interest at 18 per cent per annum. The plaintiff Abdul Shakur Khan was advised to bring a suit for recovery of the money due on the mortgage of 4th April 1915, against those holding the mortgagor's interest in the property and also against Rafiqunnissa and also against a subsequent transferee. This suit was brought as Suit No. 207 of 1925. The suit was based on the ground that by the transfer of 20th June 1922, Abdul Shakur Khan had become possessed of the self-same interest which had been owned by Abdul Haq under the mortgage of 1915. A defence was raised that the document of 1922 did not give the plaintiff a right to maintain a suit for sale on foot of the mortgage of 4th April 1915. The learned Munsif did not enter into the question seriously. He held that either it was an assignment of the mortgage of 1915, or it was a sub-mortgage and in either case, the plaintiff was entitled to claim the money which he did claim. Having decided all other points in favour of the plaintiff he decreed the claim.
6. There was an appeal and the learned appellate Judge came to the conclusion that the plaintiff was not an assignee of the mortgage of 1915 and he could not sue on the basis of that mortgage. In the result he dismissed the suit as being not maintainable "as framed." The learned Judge threw out a hint that a. proper suit to bring was in the form laid down in Schedule 1, Appendex. D, Form 9, Civil P.C.
7. The plaintiff Abdul Shakur Khan has now brought a suit in the form suggested by the appellate Judge in his judgment of 21st October 1926. The present suit is based on the sub-mortgage of 20th June 1922. Primarily the plaintiff claimed the money due to him on the mortgage of 1922. This is very important to note. He does not claim the money which was due to Abdul Haq on foot of the mortgage of 1915. This is an essential difference between the first suit and the second suit. Then the plaintiff says that if his mortgagor, namely Mt. Rafiqunnissa did not pay the money due to him on the mortgage of 1922, the mortgagors of Abdul Haq should be directed to pay the money into the Court which may be found due on foot of the mortgage of 4th April 1915, and out of that mortgage money so paid the plaintiff should be paid whatever may be due to him on foot of the sub-mortgage of 20th June 1922.
8. Both the Court of first instance and the lower appellate Court found that there was no flaw in the claim of Abdul Shakur Khan and decreed his suit. A learned single Judge of this Court came to the conclusion that the suit of Abdul Shakur Khan was barred by res judicata having regard to the provisions of Expl. 4, Section 11, Civil P.C.
9. It has been urged before us that this decision of the learned single Judge is not correct, and I am of opinion that this contention ought to prevail. To start with, Expl. 4 can apply only where the subject-matter of the two suits is identical. Expl. 4 runs as follows:
Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
10. For an effectual application of the explanation, evidently, the subject matter of the suits must be the same in both the cases, only the fresh ground, on which the claim or defence is based in the second case, has to be different. Where the subject-matter is not identical Expl. 4, from the very language used, cannot apply. In this particular case, although what is claimed is a sum of money, it is not the identical sum that is claimed in the two suits. The sums are different; they have been calculated differently; they have been calculated on the basis of different deeds. The principal amounts are different. The rates of interest are different and other terms of the deed are different. How then can it be said, that the ground of attack alone is different in the second suit, and, otherwise, the claim is the same as the claim in Suit No. 207 of 1925?
11. It has been urged that because the plaintiff had mentioned in Suit No. 207 of 1925, the document executed in his favour, dated 20th June 1922, therefore it was his duty to have so framed his case as to cover the present claim. It is possible that the plaintiff could have combined two alternative cases, when he instituted Suit No. 207 of 1925. The procedure probably would have been cumbersome; but I need not express any opinion on that point. The question for decision is whether the subject matter of the two suits were identical, and what was claimed in the former suits has bean claimed in the second suit, only on a different ground; for that is the ground on which the learned single Judge of this Court has allowed the defendants' appeal and dismissed the suit. I have tried to show that Expl. 4 does not apply to the circumstances of this case.
12. As pointed out by my learned brother, the title on which the second suit is based is entirely different from the title on which the first suit is based. Further I have pointed out that what was claimed in the former suit is not identical with what is claimed in the later suit. In the circumstances the plea of res judicata cannot succeed. I would therefore agree in allowing the appeal with costs.
13. We allow the appeal, set aside the judgment of this Court and restore the decree of the lower appellate Court. The appellant will have his costs at both hearings in this Court.