JUDGMENT
Francis W. Maclean, K.C.I.E., C.J.
1. This is a suit to realize a mortgage.
2. It appears that the same plaintiff instituted a previous suit to realize the tame mortgage. It is clear that he sought by that previous suit to recover his mortgage debt by the sale of the mortgaged property : that is found as a fact by both Courts. A decree was made in that suit on the 30th of July 1902. Apparently it was a consent decree. By that decree, the defendant, the mortgagor, was to pay the mortgage money by certain instalments, and, if he failed to pay one instalment, the whole amount remaining due was at once recoverable. Nothing was said about selling the property in the event of default of payment. The plaintiff apparently has not been paid. He now institutes this suit to have the property sold. The question is whether, in the face of the decree in the previous suit, he can do so. The Munsif held that he cannot, and the Subordinate Judge has held that he can.
3. Apart from authority, I should have thought that, inasmuch as the plaintiff elected to take a decree in the form he did, in the farmer suit, and practically abandoned or waived his right, which he then undoubtedly had, to have the mortgaged property sold in the event of the money not being paid, he cannot now, having regard to the provisions of Section 13 of the Code of Civil Procedure, successfully ask that the property should be sold in the present suit. It is, however, said that we are bound by authority, which shows the contrary. Reliance is placed upon the Full Bench decision of this Court in the case of Jonmenjoy Mullick v. Doismoney Dossee (1881) I.L.R. 7 Calc. 714. If the facts of that case had been identical with those of the present, it would have been a binding authority upon us, but the facts of that case are essentially different. In that case the mortgagee had not brought a previous suit seeking to have the mortgaged property sold for the purpose of satisfying his claim and then obtained merely a money decree, but he had only made an application under Section 53 of Act XX of 1866 asking in effect, for an order for payment of the money, which has the effect of a decree, and which may be enforced in accordance with the provisions of the Code of Civil Procedure. All. that the mortgagee did was to convert a simple debt into a judgment-debt, and the Court held that, by doing so, he had not lost his right to enforce his security against the land. Similarly in the case of Rajkishore Shaha v. Bhadoo Noshoo (1881) I.L.R. 7 Calc 78 the mortgagee obtained a money decree in a suit upon a bond, but not in a suit asking for sale of the estate. Those cases are, therefore, obviously distinguishable from a case such as the present, where the object of the previous suit was to realize the money by sale of the estate, and that portion of the relief sought was abandoned at the hearing, and the plaintiff expressed his willingness to take a mere money decree. The question, therefore, we have to consider is, whether, in a case where there was a previous suit by a mortgagee seeking to enforce his security and who was content in that suit to take merely a money decree, he can, if he has subsequently failed to obtain satisfaction of that decree, bring another suit to realize the debt by the sale of the mortgaged property,
4. I do not see how he can do so, in the face of Section 13 of the Code, especially having regard to explanation (3), which runs as follows–“Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purpose of this section, be deemed to have been refused.” I say nothing of the possible difficulty he might have by reason of explanation (2) of that section. It is difficult to suppose that, if the Judges in the Full Bench case or in the other case to which I have referred, had intended to decide that the previous orders in these cases did not operate as res judicata, they could have avoided any reference to Section 13 of the Code and especially to explanation (3) of that section.
5. I, therefore, think that the appeal must succeed and the plaintiff’s suit must be dismissed.
6. I am afraid that the plaintiff has suffered from his good nature in taking a decree in the form he did in the previous suit: he might have easily protected himself. Therefore, although we allow the appeal, we do not give the appellant any costs. He ought to have paid the money.
Geidt, J.
7. I agree.
