P L D 1954 Peshawar 53 (PLP)

MUHAMMAD SHAFI, ACTG. J. C.‑On 5th July 193‑2, Muhammad Habib, son of Ghulam Qadar, instituted a suit against Ahmad Shah for possession by redemption of a house, situated in Mauaz Pir Sado, on payment of Rs.

15. This suit was decreed ex parte on 31st February 1932. The decree for redemp tion was passed on payment of Rs.

49. In the judgment there made that the amount of Rs. 49 should be paid within 15 days, failing which the decree should be considered as cancelled. This condition, however, was not incorporated in the decree sheet. It consequently cannot be considered as a part of the decree. The plaintiff, Muhammad Habib did not pay this amount, nor did he execute his decree and get the possession of the house. On 8th March 1952, Hakim Khan and Gul Muhammad, the sons, and Mst. Bibi Rokha, the daughter of the said Muhammad Habib instituted a second suit for possession by redemption of the same house on payment of Rs. 49 against Ismail and Abdul Wahab, the sons of the said Ahmad Shah. This suit was met by the defendants inter alia on the ground that it was barred on account of res judicata. The defendants also denied that the plaintiffs were the mortgagors of the suit‑house and the defendants were its mortgagees. The following two issues were framed in the case:‑ (1) Whether the plaintiffs are the mortgagors and the defendants are the mortgagees of the suit‑house? (2) Whether there had been a previous suit for redemption of the property inter‑partes, if so its effect ? Both these issues were decided against the defendants, and a preliminary decree for the suit‑house was granted on pay ment of Rs.

49. The parties were left to bear their own costs. An appeal against this decree was dismissed, and again the parties were left to bear their own costs. The defendants have come up in revision to this Court. It has been urged by the learned counsel appearing for the petitioners, that this suit is barred under section 11, C., P. C. The relevant portion of this section reads as under :‑ "No Court shall try any suit or issue in which the matter, directly and substantially in issue has been directly and subsequently is issue in a former suit between the same parties, or between parties under, whom they or any of claim, litigating tinder the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and had been heard and finally decided by such Court." In the pervious suit the parties were the sane under whom the parties in the present suit claim. They were litigating under the same title and in a Court competent to try the subsequent suit. The matters directly and substantially in issue in the previous suit were, (1) whether the house in dispute was mort gaged by Muhammad Habib in favour of Ahmad Shah, and if so, for what amount, and (2) if the above point is decided in .the affirmative, whether the mortgage still subsisted. These matters can be said to be directly and substantially in issue in the previous suit constructively, because the proceedings were ex‑parts and all grounds of attack in respect of the actual claim made, and all matters inconsistent with the plaintiff's claim which might and ought to have been raised by the defendant would be deemed to be directly and substantially in issue in the suit and could have been heard and finally decided, under Explanation 4 of section 11, C. P. C. It would, therefore, be taken that it was decided in the earlier suit and this decision will be res judicata inter partes, that the suit‑house had been mortgaged by Muhammad Habib the predecessor‑in‑interest of the plaintiffs, in favour of Ahmad Shah, the predecessor‑in‑interest of the defendants for a sum of Rs. 49, and that the mortgage up to the date o f the decree subsisted. These matters cannot be reopened now. This view is supported by a Division Bench authority Raghunath Singh and others v. Sheo Partab Singh and others as reported (A I R 1929 All. 405.). The next question which has been argued before me is whether a second suit under the circumstances is competent or not. I have not been able to appreciate the argument of the learned counsel for the petitioners on this point that simply because the previous suit had been brought and was decreed but the decree was not executed, this suit would be barred under section 11, C. P. C. The extent to which section 11, C. P. C, would apply has been mentioned above, but beyond that I fail to see why should it be considered that the second suit for redemption would be barred for the simple reason that the previous suit for redemption had been decreed, but the plaintiff had failed to pay the amount and get the possession of the suit‑property. The previous decree did not definitely have the effect of extinguishing the mort gage, because the money was not paid and the possession was not obtained. So long as the mortgage subsists the mortgagor has in law every right to redeem it within the time prescribed by law, and the fact that a previous redemption suit was brought and dismissed for failure of the mortgagor to pay the amount decreed will not prevent the institution of a subsequent suit for redemption. This is the grew which has unanimously been taken by all the High Courts in India and Pakistan Sub‑Continent, A few authorities may be referred to They are Raghunath Singh and others v, Sheo Partap Singh arid others, as reported (A I R 1929 All. 409.), Abdur Rahim Khan v. Narsing Das and Banna Mal as reported (48 J R (N.‑W. F. P.), Vol. I, and 3) and Thotha China Subba Rao and others v. Mattapalli Rain and others as reported (A I R 1950 (F C) 1.). In the last mentioned ruling it was observed as under :‑ "The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage itself subsists. The right of redemption can be extinguished as provided in section 60 and when it is alleged to have been extinguished by a decree, the decree should run strictly in accordance with the form prescribed for the purpose. Unless the equity of redemption is so extinguished a second suit for redemption by the mortgagor, if filed within the period of limitation, is not therefore barred. If the mortgagee fails to establish that the old decree extinguished the right to redeem, there is no ground for saying that the old decree operates as res judicata and the Courts are prevented from trying the second suit under section 11, C. P. C." I consequently hold that this suit is not barred under section 11, C. P. C. It has not been urged before me, but I have gone into this question whether the subsequent suit is barred under section 47, C. P. C, This section runs as under:‑ "All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree, and not by a separate suit." Now so far as the suits for redemption of the mortgage are concerned Order 34, rule 7, C. P. C. makes it incumbent upon the Court to pass a preliminary decree in the terms mentioned therein. decree in the redemption suit is passed under Order 34, rule 8, The final C. P. C. It is clear that the matters arising after and out of the preliminary decree but before the final decree are not matters relating to the execution, discharge or satisfaction of any decree, because the matters in controversy in the suit are not com pletely disposed of and the only decree determining the suit is the final decree. Therefore, in the suits for redemption of the mortgage so long as the final decree is not passed, as it was not e done in the present case, the question of the application of section 47, C. P. C. does not arise. The result of the above discussion is that neither section 11 nor section 47, C. P. C. prevents the plaintiffs to bring the present suit and the matters viz. that: the plaintiffs' predecessor‑in‑interest was the mortgagor, and the defendant's predecessor -in‑interest was the mortgagee, that the mortgage‑money was Rs. 49, and that the mortgage still subsisted, are the matters finally decided between the parties and cannot be reagitated in this suit. In this view of the case, the revision petition of the defendants must fail, and is hereby dismissed with costs. Pleader's fee R s.

20. Orders announced. A.H. Petition dismissed.