- Bookmark
- Share
- CaseIQ
Ranga Ayyangar v. Narayana Chariar
Structured Summary of Opinion
Factual and Procedural Background
The plaintiffs in the present appeal are the appellants. The first plaintiff's father, Sreenivasa Aiyangar, executed an Othi mortgage in 1864, mortgaging the plaint properties with possession to the defendant's ancestor, Srinivasa Chariar, with a covenant by the mortgagor to pay the mortgage money personally. The defendant's ancestor brought a suit in 1867 against Sreenivasa Aiyangar's sons for recovery of the Othi amount of Rs. 136 charged on the mortgaged property. A decree was passed in April 1872 (Exhibit A). The operative portion of the 1872 decree provided, among other things, that the plaintiff obtain the suit amount and costs, that the Othi property be sold to satisfy the decree if not paid within six months, that interest on costs be payable, and that the defendants be entitled to obtain possession of the Othi land in execution through Court after satisfying the decree.
The 1872 decree was primarily in favour of the defendant's ancestor but also granted the present plaintiffs (who were defendants in the 1867 suit) a right to redeem the property and obtain possession in execution on payment of the decreed amount. That decree was not executed by either party. Nearly forty years after the former decree the present suit for redemption of the same mortgage was instituted. The parties in the present suit are related to the parties in the former suit (the opinion identifies which plaintiffs corresponded to which former defendants). The sole legal question (as framed by the court) is whether the present suit is barred by res judicata by reason of the 1872 decree; the lower courts answered that question in the affirmative, and this second appeal followed.
Legal Issues Presented
- Whether the present suit for redemption and possession is barred as res judicata by the decree (Exhibit A) passed in the 1867/1872 litigation.
- Whether the 1872 decree (Exhibit A) granted the mortgagor-defendants the right to obtain possession in execution through the Court (i.e., whether the decree was an executable conditional decree for redemption).
- Whether a mortgagor who, as defendant in a mortgagee's suit for sale, is given a conditional decree for redemption in that suit, is nevertheless entitled to bring a fresh suit for redemption and possession (or is limited to executing the conditional decree given in the earlier suit).
Arguments of the Parties
Appellant's Arguments (as represented in the opinion)
- Mr. T.M. Krishnaswami Ayyar, for the appellants, contended that the 1872 decree (Exhibit A) merely declared the plaintiffs' right to get possession of the properties on payment of the mortgage amount and did not give them any right to obtain possession in execution in that suit.
- He argued that there is a material difference between the language of Section 60 and Section 67 of Act IV of 1882 (the earlier Transfer of Property Act provisions as discussed). From that difference he inferred that a decree for sale in a mortgagee's suit, even if it contains a conditional decree for redemption in favour of the mortgagor-defendant, does not bar the mortgagor from bringing a separate suit for redemption; whereas a decree for redemption in a mortgagor's suit would bar a subsequent suit by the mortgagee for sale.
Respondent's Arguments
This information was not available in the provided opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Vedapuratti v. Vallabha Valiya Raja (1902) I.L.R. 25 Mad. 300 | Recognition that decrees in suits for foreclosure, sale or redemption frequently contain conditional decrees for redemption in favour of the mortgagor; and the view that conditional decrees are to be worked out and enforced in execution and have the force of res judicata. | The court relied on the dicta to hold that the 1872 decree was a conditional decree for redemption in favour of the mortgagors and that such a decree must be executed rather than permitting a fresh suit; thus the 1872 decree could operate as res judicata. |
| Adipuranam Pillai v. Gopalasami Mudali (1908) I.L.R. 31 Mad. 354 | Expressed doubt whether a mortgagor who failed as defendant in a mortgagee's suit for sale (but who obtained a conditional decree for redemption) could subsequently maintain an independent suit for redemption; noted that in a mortgagee's suit the defendant-mortgagor may be an "involuntary decree-holder". | The court treated this authority as supporting the proposition that a mortgagor-defendant given a conditional decree for redemption in a mortgagee's suit is confined to executing that decree and cannot thereafter bring a separate suit for redemption; the opinion refers to the case in reasoning about res judicata and execution of conditional decrees. |
| Rama v. Bhagchand (1915) I.L.R. 39 Bom. 41 | Quoted by the appellant's counsel in support of the position that a subsequent redemption suit might not be barred. | The court declined to follow this decision, stating it was unable to agree with it and referring to critical commentary; the opinion treats Rama v. Bhagchand as not controlling in the present case. |
Court's Reasoning and Analysis
The court's reasoning proceeds in a series of linked steps grounded in the text of the 1872 decree, the nature of conditional decrees for redemption, and authorities interpreting such decrees:
- The court began with a general proposition: if the former suit produced a decree in favour of the present plaintiffs (even though they were then defendants), that the decree was executable, and that it granted substantially the same reliefs as those now claimed, the plaintiffs would be barred by res judicata from maintaining a fresh suit. The lower courts had so found and the appellate court considered whether that conclusion was correct.
- On the specific construction of Exhibit A, the court rejected the appellants' contention that the decree only declared a mere right to possession upon payment and did not confer a right to obtain possession in execution. The court relied on the local meaning of the Tamil term used in the decree (as employed in the Tanjore district) to conclude that the decree did give the mortgagor a right to obtain possession "in execution through Court" upon payment.
- The court observed that Exhibit A was passed long before the Transfer of Property Act and the present Civil Procedure Code, but held that the principles articulated in later enactments and in precedent about conditional decrees for redemption applied equally to Exhibit A: a conditional decree for redemption given in a mortgagee's suit is to be enforced in execution and constitutes adjudication of the right to redeem.
- Relying on Vedapuratti v. Vallabha Valiya Raja, the court accepted the proposition that decrees for sale, foreclosure or redemption frequently include conditional decrees for redemption and that such decrees are to be "worked out and enforced in execution" and have res judicata effect. The court applied those dicta to Exhibit A, treating it as a decree that adjudicated the mortgagor's right to redemption subject to execution.
- Adipuranam Pillai was used to show that even if the mortgagor is an "involuntary decree-holder" (i.e., obtains a redemption decree as a defendant in a mortgagee's suit without having sought it), that status does not logically entitle the mortgagor to bring a separate suit for redemption after already having had the matter adjudicated in the original suit. The court therefore treated the 1872 decree as a bar to a subsequent suit.
- The court addressed the appellant's argument relying on a textual difference between Section 60 and Section 67 of Act IV of 1882 (and related procedural provisions). The appellant argued that those differences imply that a decree for sale in a mortgagee's suit would not bar a separate mortgagor suit for redemption. The court rejected that argument, explaining that the wording in Section 67 was designed to indicate procedural limits on a mortgagee-defendant's right to seek sale in a redemption suit and that, by contrast, when a redemption direction is made part of the original decree (as under the statutory framework cited), the mortgagor's right to redeem has been adjudicated and becomes res judicata.
- The court further referred to statutory provisions (as discussed in the opinion — Sections 86, 88 and 89 of the Transfer of Property Act as originally enacted and their counterparts in Order XXXIV of the Code of Civil Procedure) to show that redemption directions given in a mortgagee's suit are made a part of the decree and therefore operate as adjudication of the mortgagor's right.
- Although Rama v. Bhagchand was cited by the appellant in support of his position, the court expressly disagreed with that decision, referring to critical commentary and reiterating that the matter of the mortgagor's right to redeem is the same matter in issue in either a mortgagee's sale suit or a mortgagor's redemption suit; consequently, where it has already been heard and decided, res judicata applies.
- Napier, J. concurred expressly and reiterated the core proposition derived from Vedapuratti: the matter in issue in a redemption suit is the single question whether "the mortgagor is entitled to the decree which if he succeeds the Court is required under Section 92 to make?" The judge observed that the same matter is in issue in a mortgagee's sale suit and therefore held the present suit to be res judicata.
Holding and Implications
DISPOSITION: The Second Appeal is dismissed (the opinion states: "I would dismiss the Second Appeal with costs."). Both judges reached the view that the present suit is barred by res judicata.
Direct consequences: The plaintiffs are barred from maintaining the present suit for redemption and possession because the 1872 decree (Exhibit A) adjudicated the mortgagor's right to redemption and provided an executable direction to obtain possession in execution upon payment; the lower courts' finding of res judicata is affirmed. Costs were awarded against the appellants.
Broader implications: The court applied established principles (as discussed in Vedapuratti and Adipuranam Pillai) that a conditional decree for redemption given in a mortgagee's suit is to be executed and operates as res judicata as to the mortgagor's right to redeem. The opinion expressly declined to follow the contrary approach in Rama v. Bhagchand. The text of the opinion does not claim the establishment of a novel legal rule beyond applying these precedents and principles; its effect is to confirm that where a conditional decree for redemption has been made part of a prior decree, the mortgagor must execute that decree rather than bring a fresh suit.
1. The plaintiffs are the appellants. The first plaintiff's father, Sreenivasa Aiyangar, mortgaged the plaint properties with possession to the defendant's ancestor, Srinivasa Chariar in 1864. The Othi deed contained also a covenant by the mortgagor to pay the mortgage money personally. The defendant's ancestor brought a suit against Sreenivasa Aiyangar's sons in 1867, for recovery of the Othi amount of Rs. 136, on the charge of the mortgaged property. (The plaint itself was not filed in the records but the suit might be taken as having contained the usual prayers for sale on default and for recovery of the balance if any from the defendants therein to the extent of their ancestral properties.) In April 1872 the decree (Exhibit A) was passed, of which the operative portion is as follows:
The plaintiff obtain from the defendants the suit amount and all the costs of the suit, that the Othi property be sold in order to satisfy the decree in case the decree amount be not paid, within six months from this day, that the plaintiff is entitled to obtain interest on costs at 12 per cent, per annum from this day and that the defendants are entitled to obtain possession of the Othi land in execution through Court after satisfying the decree.
2. This decree passed in favour of the present, defendant's ancestor primarily but in which the present plaintiffs were also granted a right to redeem the property and to obtain the-possession of it from the present defendant's ancestor in execution on payment of the amount decreed was not executed by either of the parties to that decree. The present suit was brought nearly forty years after the date of the former decree for the redemption of the same mortgage. (The plaintiffs Nos. 1, 2 and 3 in this suit were the defendants Nos. 4, 5 and 6 in the former suit of 1867.) The plaintiffs Nos. 4, 5 and 6 is this suit are the sons of the deceased Aravamudu Aiyangar who was the first defendant in the former suit, The seventh plaintiff in this suit is the son of the second defendant in the former suit. I shall hereafter for the sake of brevity make no distinction between the plaintiffs and their ancestors or between the defendants and their ancestors.
3. The sole question in this case is whether the present suit is barred as res judiata by the decree in the former suit. Both the lower Courts decided the question in the affirmative and hence this Second Appeal.
4. It seems to me clear, that if in the former suit there was a decree in favour of the present plaintiffs (though they were the defendants in the former suit) and if it was an executable decree and if that decree granted them substantially the same reliefs as they now claim in this suit they are barred by res judicata from maintaining the suit, and notwithstanding the strenuous and able arguments of Mr. T.M. Krishnaswami Ayyar who appeared for the appellants before us, I have come to the conclusion that the finding of the lower Courts was correct on the question of res judicata.
5. In the first place I dissent from his contention that the decree (Exhibit A) of 1872 merely declared the present plaintiff's right to get possession of the properties on payment of the mortgage amount and did not give them any right to obtain possession in execution in that suit. The Tamil word at least in the Tanjore district is always used to mean "the obtaining of possession in execution through Court" and I think that the decree (Exhibit A) did give the plaintiffs (who were the defendants in the suit of 1867) the right to obtain possession of the mortgaged properties through Court, in execution of the provisions of that decree on their payment of the mortgage amount.
6. In order to clear the ground further it has to be remarked that the decree (Exhibit A) of 1872, was passed long before the Transfer of Property Act and the present Civil Procedure Code were passed. The decre6 (Exhibit A) as I said before gives the present plaintiffs who were the defendants in that suit a right to obtain possession of the plaint land through the Court in execution on condition of their satisfying the decree passed in the present defendant's (then plaintiff's) favour. In Vedapuratli v. Vallabha Vally a Raja (1902) I.L.R. 25 Mad. 300, there occur several dicta in the long and exhaustive judgment of Sir Bhashyam Ayyangar, J. At page 301, he says; "Whether the decree be in a suit for fore-closure or in a suit for sale or in a suit for redemption there is in each a conditional decree for redemption in favour of the mortgagor, the condition being the payment by the mortgagor of the amount decreed on or before the data fixed." "Decrees for specific performance, decrees respecting rights of easement and similar decrees are often made conditional but they are not the lass final judgments, having the force of res judicata. This, I venture to state, is equally so under the English Law and all decrees whether conditional or unconditional are to be worked out and enforced in execution." I entirely and respectfully agree with these observations; no doubt the learned Judge was referring to decrees for sale and for redemption passed under the Transfer of Property Act, but his observations apply to this decree of 1872 also which contains a conditional decree in favour of the mortgagors for redemption though it was a mortgagee's suit for sale. In Adipuranam Pillai v. Gopalasami Hudah (1908) I.L.R. 31 Mad. 354, the following passage occurs at page 360: "The reason on which is based the decision of the Pull Bench in Vedapuratti v. Vallabha Valiya Raja (1902) I.L.R. 25 Mad. 300 renders it at least doubtful whether a suit for redemption could be obtained by a mortgagor who has failed as defendant in a suit for sale on the same mortgage," It seems to me that the doubt so expressed is (if I may say so with respect) a very proper doubt and I think that the reasoning of the decision in Vedapuratti v. Vallabha Valiya Raja (1902) I.L.R. 25 Mad. 300 does prevent a mortgagor who as defendant in the mortgagee's decree for sale got a conditional decree for redemption from afterwards maintaining a suit of his own for redemption and possession of the mortgaged property instead of executing the conditional decree for redemption passed in the first suit. A decree for redemption is almost invariably a conditional decree whether it is passed in a mortgagee's suit for sale or a mortgagor's suit for redemption. No doubt where it ia passed in a mortgagee's suit for sale, it is not usually passed on the invitation of the mortgagor (defendant) and ' in the language used in Adipuranam Pillai v. Gopalasami Mudali (1908) I.L.R. 31 Mad. 354 at p. 359, "the defendant is a decree-holder in spite of himself, an involuntary decree-holder," but I do not see how this could on principle make any difference in the decision of the question whether the mortgagor-defendant who has been given such a decree is entitled only to execute that decree, or whether he is entitled to bring a fresh suit for redemption, despite the doctrine of res judicata. As I said before the decree of 1872 is a decree in favour of the mortgagor also, as it empowers him to recover possession of the property in execution. The legislature in Act IV of 1882 has enacted that decrees passed in mortgage suits whether brought by the mortgagor or mortgagee should (if necessary) be made to contain a direction that the mortgagee shall put the mortgagor in possession of the mortgaged property on the mortgagor, paying up the amount mentioned in the decree as due to the mortgagee. [See Sections 86, 88 and 89 of the Transfer of Property Act now repealed by the Civil Procedure Code, which however re-enacts very similar provisions in Order XXXIV, Rule 2, Clause (c), Rule 4f Clause (1) and Rule 5, Clause (1)(o).] The decree of 1872 contains the same direction. Mr. Krishnaswami Ayyar laid much stress1 upon what he argued was a material difference between the language of Section 60 of Act IV of 1882 which deals with the right o£ the mortgagor to redeem and the language of Section 67 which refers to the right of mortgagee to obtain an order for foreclosure or sale. In Section 67 the right of the mortgagee to obtain an order for foreclosure or sale is restricted to the period "before a decree has been made for the redemption of the mortgaged property." These words "before a decree has been made for the redemption of the mortgaged property" or the correlative words "before a decree has been made for sale of the property" do not appear in Section 60. He therefore argued if I understood him aright, that a decree for sale in a mortgagee's suit, though it may also contain a decree for redemption in favour of the defendant-mortgagor does not bar a separate suit by the mortgagor for redemption whereas a decree for redemption in a mortgagor's suit will bar a separate suit by the mortgagee for sala afterwards. I do not think that the insertion of the words "before a decree has been made for redemption of the mortgaged property" in Section 60 and the absence of corresponding words in Section 60 necessarily lead to any such conclusion as is contended for by the learned vakil. These words had to be inserted in Section 67 in order to indicate that the power given under Section 93 of the Transfer of Property Act to the mortgagee as defendant to apply for sale of the property in a mortgagor's suit for redemption ought to be exercised in the same suit by the defendant-mortgagee, if he wants a sale of the property for realizing his amount and that he could not reserve it for a fresh suit as an optional remedy which he might or might not take advantage of in the mortgagor's suit. It will be seen that under Section 93, paragraph 2, Order XXXIV, Rule 8, Clause (4) the order for sale at the instance of the mortgagee-defendant is not an order passed as a part of the decree but an order passed on a separate application on the mortgagor (plaintiff) committing default whereas Section 89 read with Sections 86 and 88 makes the order for redemption in the defendant-mortgagor's favour in the mortgagee's suit for sale, a part of the original decree itself. So being made in the latter case a part of the decree itself, it was unnecessary to state in Section 60 that when a decree has been made for redemption or for sale the mortgagor has no right to again redeem the mortgaged property. After the passing of such a decree, as is said, the right had been adjudicated upon in the suit itself, and has become res judicata whether the suit was a suit by the mortgagor for redemption or by the mortgagee for foreclosure or sale.
7. No doubt Rama v. Bhagchand (1915) I.L.R. 39 Bom. 41 quoted by the appellant's learned vakil is in his favour. But with the greatest respect, I am unable to agree with that decision. As said in the critical notes in pages 7 and 8 of the Madras Law Journal, volume 29, in the words of Section 11, Civil Procedure Code, has not the matter directly and substantially in issue in the second suit, viz., the plaintiff's right of redemption been in issue, and also heard and decided in the former suit? What new point, right or question* has the Court to hear or decide in the second suit? It will be impossible to contend that for the application of the rule of res judicata to suits (as distinguished from issues) the persons should on both occasions be arrayed alike whether as the plaintiffs or as defendants." The mortgagor was entitled in the former suit itself (of the mortgagee) to redeem the property not only within the six months given in the decree to pay up the decree-amount but he was entitled under the Civil Procedure Code [as decided in Adipuranam Pillai v. Gopalsami Mudali (1908) I.L.R. 31 Mad. 354 at p. 359 to pay it up even after the six months and at any time before a sale in execution and so prevent a sale. The Court need not be solicitous to help a negligent mortgagor at any cost. The fact that the mortgagee has to bring a suit for sale within twelve years of the date when the mortgage money became payable, whereas a mortgagor has got sixty years under Article 148 for his suit for redemption is not a sufficient or logical ground for allowing the mortgagor to obtain a fresh decree for redemption in his own suit after he had obtained one decree already in the mortgagee's suit for sale.
8. In the result I would dismiss the Second Appeal with costs.
Napier, J.
9. I agree. In Vedapuratti v. Vallabha Valiya Raja (1902) I.L.R. 25 Mad. 300 the late CHIEF JUSTICE stated the proposition thus. The matter in issue in a redemption suit is aye or no:
"Is the mortgagor entitled to the decree which if he succeeds the Court is required under Section 92 to make?"In my view the same matter is in issue in a mortgagee's sale suit whether the suit be under English Law or the Transfer of Property Act and whatever difference in form has been made by the provisions in the new Code. In that view this suit is res judicata and the appeal must be dismissed.
Alert