JUDGMENT

Sadasiva Aiyar, J. — The plaintiff is the appellant. (Both plaintiff and defendant are women). The facts out of which this suit has arisen may be shortly stated thus. The plaintiff was the simple mortgagee of certain lands under a bond of 1899 executed by third persons to her predecessors in title. She hypothecated that hypothecation right and other properties to the defendant in 1908 for Rs. 200. The hypothecated hypothecation right became barred in 1911, owing to a suit not having been brought against the third persons either by the plaintiff (the mortgagee under it) or by the defendant (who obtained transfer of that mortgage from plaintiff by way of security). Then the defendant brought a suit in 1915 against the plaintiff on her (defendant's) own mortgage of 1908 for recovery of the amount due to her. The defendant in that suit, (namely, the present plaintiff) pleaded that the present defendant (plaintiff in that suit) having by her default failed to sue for and recover from the third persons the money due under the bond of 1899 left with the defendant as security, she (the defendant) was liable to account to the plaintiff for much more than the amount sued for, on the bond of 1908 and that therefore the suit ought to be dismissed. That plea of the defendant in that suit (the present plaintiff) was accounted therein. It was found that more money was due to the present plaintiff by reason of the defendant's accountability for her default than was claimable by the defendant under the bond of 1908 and the defendant's former suit was accordingly dismissed. The plaintiff brought the present suit to recover the difference between the amount alleged by her to be due to her as damages, caused by the defendant's default and the amount due to the defendant under the mortgage of 1908. Several defences were raised in this suit. One of the contentions put forward by the defendant before us namely that the plaintiff has no cause of action and no right to claim damages for the defendant's default in suing the third persons (mortgagors of 1899) cannot be accepted, as the plaintiff's right to claim such damages was established in the former suit and is therefore res judicata.

The only defences which need be considered are (1) that the suit is barred by limitation and (2) that the suit is barred by res judicata, by reason of the decision in O. S. No. 226 of 1915, that is, the suit brought by the present defendant against the present plaintiff for recovery of her mortgage amount and sale of the mortgaged properties. The District Munsiff decided the question of res judicata in favour of the plaintiff but decided the question of limitation against the plaintiff and dismissed her suit.

As regards the question of res judicata the District Munsif's reasoning was that the causes of action in the two suits were different and therefore there was no res judicata. The Lower Appellate Court did not go into the question of res judicata but decided the suit solely on the question of limitation holding that either Art. 65, or Art. 115 of the Limitation Act (three years period) applied and that Art. 116, relied on by the plaintiff and providing a period of 6 years did not apply. I do not think it necessary to go into the question of limitation, as I am satisfied that the District Munsiff is wrong in his decision on the point of res judicata and the plaintiff's suit must fail, on the decision against her on that point. The first suit was brought on the transaction of mortgage between the two parties entered into in 1908. The present suit was also based on that same transaction namely on the alleged obligation of the defendant created by law under the same transaction. The cases in Mahabir Pershad Singh v. Macnaghten, Vinayak v. Dattatraya, Rukhmini Bai v. Venkatesh, and Satyabadi Behara v. Harabati, clearly establish in my opinion that where a transaction of mortgage has become fully ripened, so that the rights and liabilities of the parties can be dealt with, by the Court before which the suit is brought, in respect of that transaction, whether the suit is for foreclosure by the mortgagee or for sale by the mortgagee, or in the alternative for foreclosure or sale by the mortgagee or for redemption by the mortgagor all, questions (including even claims for rent due on transactions inseparably connected with the mortgage) relating to the taking of accounts between the mortgagor and the mortgagee ought to be decided in one and the same and in the very first suit and no second suit can be brought by either party, for any claim arising out of that same transaction of mortgage. I shall only quote a few sentences from two of these decisions. In Vinayak v. Dattatraya it is said: “Now the question is one which arises directly out of the mortgage transaction, which was the subject matter of determination in the former suit. But the decree in a suit for redemption must be such as to enable the Court to do complete justice; and as far as it is possible, the Court endeavours to make a complete decree, that shall embrace the whole subject and determine upon the rights of all the parties interested in the estate. So in this case, the claim on which we are now asked to adjudicate is one that could and ought to have been advanced in the former suit. Without a determination on it, there was not a complete adjustment of the rights of the parties. * * * Where a given matter becomes the subject of litigation in, and of adjudication by a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same party to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence or even accident omitted part of their case. The plea of res judicata applies except, in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time. * * * The comprehensive character of suits relating to mortgages and the obligation incumbent on litigants to see that the decree in them covers all their rights has been repeatedly recognised by the courts.” Mr. L. A. Govindaraghava Aiyar attempted to distinguish this and some other cases on the ground that the first suit in those cases was a suit for redemption and not for sale and that there was a distinction between those two classes of suits, because O. 34, R. 9 of the Code of Civil Procedure gives the mortgagor the right to recover moneys due by the mortgagee on taking of accounts as between the mortgagor and the mortgagee, only in a suit for redemption. I am unable to accept this distinction as based on any intelligible principle. The fact that O. 34, R. 9, expressly gives the plaintiff in a redemption suit the right to recover money due by the mortgagee does not at all imply that if the mortgagor happens to be a defendant in a suit for foreclosure or for sale (or either in the alternative) he could not and ought not to claim the moneys due to him by the mortgagee—plaintiff and the Court is not entitled to give him such a decree. On the other hand, in the case in Satyabadi Behara v. Harabati the decision says at page 233: “the provisions of the Transfer of Property Act, which we have already analysed plainly indicate that in a redemption suit, the whole of the accounts between the mortgagor and the mortgagee must be taken. As was observed by Mr. Justice Pontifex in Doole Chand v. Omda Khanum the essence of foreclosure and redemption suits is, that in such suits, each party is entitled to enforce his rights; a plaintiff claiming a foreclosure is bound, upon the accounts being taken, if the balance is against him, to pay that balance; unless this were so, there would be a multiplicity of suits: to avoid this it is necessary under a decree for foreclosure or redemption that the accounts between the parties should be settled and discharged; if the balance is against any party he must pay it.” This is a well established principle of jurisprudence on which O. 34, R. 9 is based and it is not confined to cases where the mortgagor sues as plaintiff for redemption but it applies to all suits in which accounts as between the mortgagor and the mortgagee have to be taken once for all. I do not think it necessary to go in detail into the questions of legal set-off and equitable set-off elaborately argued on both sides. No doubt in a case of strict legal set-off the defendant is not bound to pat forward his counter-claim and a separate suit by him, will not be barred. But if he did put forward, such a counterclaim by way of legal set-off and if the whole of that counterclaim was within the competence of the Court to decide, he cannot afterwards sue for any portion of that claim, if he did not get a decree for that portion in the first suit, in which he put forward that counter-claim. The cases in which a counterclaim is beyond the competence of the Court in the first suit, for example where the first suit was brought on a Small Cause Court which could not exercise jurisdiction over the counterclaim, are irrelevant in the consideration of the point in dispute. As regards an equitable set-off, it arises out of the same transaction in most cases and it not only might but ought to be made the basis of a counter-claim in the first suit itself. The argument based on the language of O. 8, R. 6 (2) that because it is stated that the written statement pleading a legal set-off shall have the same effect as the plaint in a cross sujt, therefore the legislature impliedly said that the Court in which an equitable set-off is pleaded cannot give the same effect to that claim, as if it was a plaint in a cross suit is based on a fallacy similar to that which I have already referred to, when considering the argument based on the language of O. 34, R 9. These statutory provisions are based on general principles and the express recognition of those general principles in particular statutory provisions dealing with the particular cases cannot be treated as a direction to the Court to discard those principles in other cases. Then some argument was based on a meticulous examination of the language of Sect. 11, Civil Procedure Code. As I am clear that the counter-claim in the former suit is a cross suit, not only allowed by the law, but required by the law to be prosecuted as a counter-claim by the defendant at the risk of her being debarred from setting it up afterwards, there is nothing in this contention. Even if Sect. 11 does not directly apply, the principle of res judicata is one based upon much wider considerations of general jurisprudence than are covered by Sect. 11 and the authorities which I have already referred to clearly indicate that those principles, even if Sect. 11 did not strictly apply, prohibit the second suit in cases like the present. I should not, however be understood as doubting that Sect. 11 itself even construed strictly applies to this case.

In the result I dismiss the second appeal with costs.

Spencer, J.—I agree that this suit is barred by res judicata. In Mahabir Prashad Singh v. Macnaghten, there was a suit by the mortgagees and when that suit was brought, the mortgagees owed some amounts to the mortgagors for rent, which the mortgagees did not pay. When the mortgagees got a decree for the amount and after the mortgaged property had been sold, the mortgagors brought a suit to have the sale set aside by getting the rents which had accrued in their favour set-off against the amount due under the mortgage. Their Lordships of the Privy Council observed that the proper occasion for enforcing this equity of set-off would have been in defence of the mortgage suit, and therefore the plea was one which ought to have been made a ground of defence in the former suit, between the same parties, and the plaintiffs who were appealing were debarred from putting forward their claim in a separate suit. Now, in the case before us, it appears that in the prior suit, O. S. No. 226 of 1915 on the file of the Additional District Munsif's Court of Sivaganga, the present plaintiff was there found entitled to at least Rs. 1072 against the amount of Rs. 634 found to be due to the present defendant, who was plaintiff in that suit and consequently the suit was dismissed. So this is a stronger case than that in Mahabir Pershad Singh v. Macnaghten because not only might this plea have been raised in the former suit, but it actually was raised and the suit was dismissed in consequence. Under O. 20, R. 19 of the Civil Procedure Code, the decree in that suit might have stated what amount was due to the plaintiff and what amount was due to the defendant and either party might have been allowed to recover what was due to each. In that suit, the present plaintiff was content to have the suit dismissed; she apparently waived her claim to the balance that was due to her and she cannot now sustain the present separate suit for a relief which she might have got in the former suit.

I agree that this Second Appeal should be dismissed with costs.

S.SAppeal dismissed.