Govind Hari Dev v. Paeashram Mahadev Joshi

Jenkins, C.J:— On a settlement of accounts it was found that there was due from the first defendant to the plaintiff Rs. 15,505, and in reference to this indebtedness the arrangement was made, which is contained in a document dated the 15th June, 1895, Exhibit 15 in the case. The leading idea of this document was, that Rs. 4,000 of this debt was to be paid off before the 18th of September, and that a mortgage on the specified property was to be given for the balance. But, in the event of the first defendant's failing to pay the Rs. 4,000 within the stipulated period, the mortgage was to be for the full amount, That, we think, is the true effect of the document, notwithstanding the argument advanced by the Advocate-General in reliance on its last clause. Exhibit 15 was duly registered. The Rs. 4,000 was not paid as provided, nor has a mortgage been executed.

On the 16th September, 1899, the plaintiff commenced a suit in the Pen Second Glass Subordinate Court to recover the Rs. 4,000 with Rs. 1,916 for interest thereon, but in order that the suit might come within the jurisdiction of that Court Rs. 917 were remitted. On the 29th of September, 1899, a decree was passed in the plaintiff's favour. On the 30th September, 1893, the plaintiff commenced the present suit against the first defendant, his debtor, and against the second defendant, who as a judgment-creditor of the first defendant has attached the property comprised in the mortgage. In it the plaintiff prays that either defendant No. 1 be ordered to pass to the plaintiff a mortgage-bond for Rs. 17,442-7-9, or that a decree be passed for the recovery of the said amount by sale of the property agreed to be mortgaged and from defendant No. 1, and that the property be declared liable for the amount claimed.

The case was heard by the First Class Subordinate Judge of Thana, who held (1) that the suit was barred by section 43 of the Civil Procedure Code, (2) that the claim for specific performance is barred, and (3) that the agreement was fraudulent, and as a consequence he dismissed the suit. From this decree of dismissa the present appeal is preferred by the plaintiff, who has maintained that on each of these points the lower Court erred.

Mr. Scott has not attempted on behalf of the second defendant to support the finding of fraud, nor do we think there is anything on the record to justify the Judge's conclusion on this point. To this extent, therefore, we think he is wrong. This brings us to the points which have been argued before us.

section 43 of the Code of Civil Procedure is in these terms:—

“Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

“If a plaintiff omit to sue in respect of, or intentionally relinquish, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

“A person entitled to more than one remedy in respect of the same cause of action may sue for 11 or any of his remedies but, if he omits (except with the leave of the Court obtained before the first hearing) to sue for any of such remedies, he shall not afterwards sue for the remedy so omitted.

“For the purpose of this section an obligation and a collateral security for its performance shall be deemed to constitute but one cause of action.’

The contention founded on this section is, that the Rs. 4,000 issued for in the Pen Court was but a part of the Rs. 15,505 and interest, and inasmuch as the plaintiff omitted to sue then for the balance, he cannot now sue in respect of it. To escape from this the argument advance I by the Advocate General is, that the present is a different cause of action; in the former suit the plaintiff sued for non-payment of the Rs. 4,000, while in this suit. he sues for damages for breach of the agreement to execute a mortgage. We think this argument cannot prevail: as a matter of fact the Rs. 4,000 and the Rs. 25,505 were portions of one total indebtedness, and though there was the agreement for payment of the Rs. 4,000, to which we have already alluded, when the Pen suit was commenced, the whole amount was equally payable and in respect of every part of that amount the first defendant had failed to perform his obligation to execute the mortgage. In whichever way, therefore, the position be regarded there was one cause of action; and, so far as the argument to which we have referred goes, it appears to us that section 43 affords a conclusive answer.

There is, however, another way of approaching the case that presents a certain amount of difficulty, and with this we will now deal.

Did the plaintiff by virtue of the agreement actually obtain a charge on the property for the which amount of the debt, and if so, is he in a better position so far as the plea of res judicata goes? Now it is clear that so far as the plaintiff requires a decree for specific performance in his favour, he is out of Court; because article 113 in the Schedule to the Limitation Act would apply. But in our opinion he is unde? no obligation to seek specific performance; the existing indebtedness constituted a valuable consideration, and it follows that even without the execution of the contemplated mortgage a good charge was created in the plaintiff's favour, which would prevail, not only against the first defendant, but also against the second defendant, who as a judgment-creditor could not have a greater interest than his debtor. But does this better the plaintiff's position? The last da use in section 43 of the Code of Civil Procedure provides that for the purposes of the section an obligation and a collateral security shall be deemed to constitute but one cause of action: so that, if matters rested there, the plaintiff by suing for the Rs. 4,000 would have precluded himself from suing on his collateral security. We have stated this position hypothetically, because the Advocate General maintains that, so far as mortgage securities go, this provision is nullified by section 99 of the Transfer of Property Act. Now that section is as follows:—

“Where a mortgagee in execution of a decree for the satisfaction of any claim, whether arising under the mortgage or not, attaches the mortgaged property, he shall not be entitled to bring such property to sale otherwise than by instituting a suit under section 67, and he may institute such suit notwithstanding anything contained in the Code of Civil Procedure, section 43.”

When the Transfer of Property Act was passed, the Civil Procedure Code then in existence was not the present code, act xiv of 1882; but by section 3 of the present code it is provided that “when in any Act xx xx xx passed xx xx xx prior to the day on which this Code comes into force reference is made to xx xx xx the Code of Civil Procedure xx xx xx such reference shall, so far as may be practicable, be read as applying to this Code or the corresponding part thereof”. Conceding, then that section 43 of the Civil Procedure Code must be read in subordination to section 99 of the Transfer of Property Act, what is the result? If we accept the Advocate-General's argument, we have to exclude mortgages from the operation of the last clause of section 43, though they would certainly seem to be the collateral securities directly aimed at: we should, in effect, be imputing to the Legislature the error of repugnancy. It is therefore, necessary to see whether the two sections are not reasonably capable of a construction which will avoid that result.

Now it is clear that section 43 is directed against to evils: the splitting of claims and the splitting of remedies. If a man omits from his suit a portion of his claim, he shall not afterwards sue in respect of it: if he omits one of his remedies, he cannot afterwards pursue it, so that if a mortgagee sues on his personal security alone he cannot afterwards sue on his real security. That we take to be the effect of section 43 standing by itself.

Section 99 of the Transfer of Property Act is aimed at another and distinct evil: the hardship inflicted on mortgagors by mortgagees proceeding to realize their claim by execution of money-decrees passed in respect of the mortgagor's personal liability. Consequently, that section provides, that mortgaged property shall not be sold in execution of a decree otherwise than by an ordinary mortgagee's suit. It will be seen, therefore, that the primary purpose of section 99 is not to increase, but to curtail a mortgagee's powers; and to secure that end, and for that purpose alone the bar imposed by section 43 of the Code of Civil Procedure has to be relaxed.

Then comes the question how far does this relaxation extend? Does it nullify the whole of that section, and remove the restriction both on the splitting of claims and the splitting of remedies? We think not; its only purpose is, in our opinion, to relieve a mortgagee from the restriction placed on the splitting of his remedies. The rest of the restriction is unimpaired, and inasmuch as the plaintiff in this case has omitted in his former suit to sue in respect of the Rs. 11,505, which was a portion of his claim, he cannot now sue in respect of the portion omitted.

For these reasons we think that section 43 of the Code of Civil Procedure is a bar: the decree of the lower Court must be confirmed and this appeal dismissed with costs.

Decree confirmed.