The Judgment of the Court was delivered by
Sir S. Subrahmania Ayyar, Offg. C.J:— The plaintiff-appellant obtained from the first and second defendants and the guardian of the third defendant, on the 4th October 1897, a mortgage for Rs. 2,200 lent at an interest of 18 per cent, per annum. The property mortgaged to the plaintiff was again mortgaged by the said mortgagors to one Damodaram Chetty on the 11th July 1899. Damodar brought a suit on his mortgage Original Suit No. 188 of 1900 on the file of the District Munsif of Coimbatore making the mortgagors and others, interested in the property, defendants, including the present plaintiff who was the sixth defendant there. The plaintiff's mortgage was admitted by all the parties to the suit and the plaintiff appearing in person consented to the outright sale of the plaint property subject to his being allowed to realist what, was due to him in the first instance. The decree passed in the case provided inter alia that in default of payment of the sum due to Damodara within the date fixed, viz., the 10th October 1900, the property of a sufficient portion thereof should be sold and the proceeds of such sale, after defraying thereout the expenses of the sale, should be applied in payment of what was due to the present plaintiff, viz., Rs. 2,200 with interest at 18 per cent, per annum from the 12th July 1899 (the interest prior thereto having been paid off) to the 30th January 1900 the date of the plaint in that case, and at 6 per cent, per annum from the latter date to realization, and the balance, if any, applied towards the discharge of Damodar's debt. The decree did not authorise the present plaintiff to apply for sale. His right to be paid out of the sale-proceeds depended upon a sale taking place on the application of Damodar. Though the property was advertised for sale on the latter's application, no sale took place as his debt was paid off, and the execution proceedings were dropped by him. In the present appeal the only dispute is as to the rate of interest to which the plaintiff is entitled subsequent to the 30th of January 1900.
The District Judge held that the plaintiff was precluded from claiming more than 6 per cent, per annum the rate mentioned in the decree Damodar's suit. No doubt the plaintiff could not have claimed anything but that rate in execution proceedings there. But the question is whether he is disentitled in the present suit to claim the contract rate of 18 per cent subsequent to the 30th of January 1900. It does not appear from the record of Damodar's suit why the decree therein provided only 6 per cent. It was clearly not upon any express consent given by the plaintiff. Probably it wits fixed in exercise of the power under section 209 of the Civil Procedure Code erroneously supposed to be applicable to mortgage decrees also. However this may be, does the provision as to 6 per cent in the decree operate as res judicata in the matter as contended for the fourth defendant who is a purchaser of the equity of redemption of the first, second, and third defendants? Now let us concede for argument that the direction as to 6 per cent in the decree involves a finding on the point; that is not binding in the present case as the total amount of claim here exceeds Rs. 2,500 and the Court which decided Damodar's suit was not competent to try the present. It was however urged that at the time the decree was passed in that case the amount, due to the plaintiff was under Rs. 2,500 and the increase due to subsequent interest should not be held to affect the question on the analogy of the decisions in Gupi Nath Chobey v. Bhugwat Pershad(1) and Pathuma v. Salimamma(2). In those cases the prior and the subsequent suits related to identical properties and the fact that the market value thereof had increased in the interval between the two suits was held not prevent the estoppel operating between the parties. But the augmentation of the claim by accrual of interest is not similar to a rise in the market value of one and the same property. No doubt the subject matter of the decree in Damodar's suit, so far as it affected the present plaintiff, is also that to which the present suit relates, viz., his mortgage right. But the matter of relief is different inasmuch as the amounts vary. And Misir Raghobardial v. Rajah Sheo Baksh Singh(3) and Rajah Run Bahadur Singh v. Mussumut Lachoo Koer(4) which settled the law on the point under consideration, lay down that concurrent jurisdiction for the present purpose means “concurrent as regards pecuniary limit as well as the subject matter.” The former of these rulings was itself in a case of mortgage. There the suit was for principal (Rs. 12,000) and interest upon a bond brought in the Court of a Deputy Commissioner, and, with reference to a plea that in a suit, for interest only brought in the Court of an Assistant Commissioner it had been held that Rs. 1,790 and not Rs. 12,000 was the amount of principal, and interest had been decreed thereon accordingly it was held that there was no res judicata as regards the principal amount of the bond as the pecuniary limit of the Assistant Commissioner's jurisdiction was only Rs. 5,000. It was contended that such a view was no longer maintainable and the argument in support of it was:— “On the one hand, section 85 of the Transfer of Property Act requires that all parties having an interest in property comprised in a mortgage should he impleaded in the suit brought thereon. On the other, the jurisdiction of the Court in a suit upon a mortgage is governed by the plaintiff's mortgage amount and under section 15 of the Civil Procedure Code every suit has to be instituted before the lowest Court of competent jurisdiction. To lay down, in such circumstances, that no adjudication by such last-mentioned Courts in respect of matters affecting the mortgaged property with reference to claims in excess of their pecuniary jurisdiction is binding on the parties thereto in a subsequent litigation coming before a higher Court, would be altogether to frustrate the object which the Legislature must have had in view in enacting section 85 of the Transfer of Property Act.” But the direction contained in that section is only an old rule of practice as to parties and it cannot rightly be held that the embodiment of it in the statute modifies the principle of res judicata laid down in the Privy Council cases already cited with reference to decisions by Courts of inferior jurisdiction. In this view no doubt findings arrived at with reference to matters affecting the rights of defendants in mortgage suits may at times be of no avail as estoppel in a superior Court with reference to the same points. But such also is the result in other descriptions of suits where a matter gone into by a Court of lower jurisdiction, properly for its own purposes, is inefficacious as res judicata in suits tried before Courts of higher jurisdiction. If it be considered that mortgage suits should form an exception in this respect, it is for the Legislature to introduce such an exception by apt provisions.
I would therefore modify the decree of the District Judge by awarding to the plaintiff interest at 18 per cent, per annum till the date fixed for payment, viz., the 5th January 1906 and 6 per cent, per annum subsequently with costs of the plaintiff throughout.
Sankaran Nair, J.:— There was no decision in the previous suit that the present plaintiff was only entitled to interest at 6 per cent. from the 30th January 1900. On the assumption that the relation then subsisting between the parties was to be determined by those proceedings, the plaintiff was awarded, as a matter in the discretion of the Judge, that rate from the date of the plaint to the date of realization which means in my opinion realization in the course of those proceedings. It was not intended as a restriction of the plaintiff's right if there was no realization. I concur accordingly.