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Judgment
Harnam Singh, J.—On 1-4-1926, Lala Ram, father of Hardwari Lal, Om Parkash and Ram Kishan Plaintiffs, mortgaged with possession the shops in suit for Rs. 3,000. Lala Ram, however, obtained a lease of the shops from the mortgagees. A decree for arrears of rent in a sum of Rs. 270 and for the eviction of Lala Ram was passed on 23-1-1930. In execution of that decree the equity of redemption of the mortgaged property was sold for Rs. 50 on 28-6-1931, and the auction-sale was confirmed on 3-8-1932.
Hardwari Lal major, Om Parkash and Ram Kishen minors instituted the suit, out of which these proceedings have arisen, for declaration that the auction-sale in civil case No. 722 of 1929 was null and void and that the Plaintiffs'' claim for redemption of the mortgaged property on payment of Rs. 3,000 may be decreed.
Defendants resisted the suit inter alia on the ground that the suit was bad for misjoinder for causes of action. On the pleadings of the parties the trial Court fixed the following issue:
Whether the suit is had for misjoinder of causes of action?
In deciding the case the trial Court said:
The only argument advanced by the learned Counsel for the Plaintiffs in support of the joinder of causes of action is that he wanted to avoid multiplicity of suits and says that the joinder of the causes of action in the present case is permissible under Order 2, Rule 8(1), Code of Civil Procedure. The Counsel for the Defendant, however, argued that the case relates to the recovery of immovable property and therefore the Plaintiffs could not join any other cause of action with it under Order 2, Rule 4, I do not think Order 2, Rule 4 applies to the present case, but I think that the joinder of the causes of action in this case is obviously undesirable. The prayer for declaration of Plaintiffs right is quite distinct from the prayer for redemption. Even the procedure for redemption is quite separate and is governed by 0rder 34, Code of Civil Procedure. I therefore direct under Order 2, Rule 6, CPC that the two causes of action should be tried separately and not together.
Plaintiffs should therefore choose the cause of action which they wish to proceed in the case.
Mr. Mittal, learned Counsel for the Plaintiffs-Petitioners, concedes that the cause of action for declaration arose from the auction-sale whereas the cause of action for redemption arose from the mortgage of the property in suit. In other words there are two causes of action which have been joined together in the suit out of which this revision has arisen. Mr. Mittal, however, points out that inasmuch as the trial Court has found that the suit does not fall within Rule 4 of Order 2 and falls within Rule 3(1) of Order 2 the order passed by the trial Court on 9-2-1948 comes within Section 115, Code of Civil Procedure.
Mr. Jagdiah Lal Bhatia, however, urges that Rule 3(1) of Order 2 is to be read subject to the other provisions of the Code including Rule 4 of Order 2. That this is so is clear from the opening words of Rule 3(1) of Order 2 which makes the rule subject to the other provisions contained in the Code. Rule 4 reads:
No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except-
(a) claims for mesne profits or arrears of rout in respect of the property claimed or any part thereof;
(b) claims for damages for breach of any contract under which the property or any part thereof is held; and
(c) claims in which the relict sought is based on the same cause of action:
Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.
Rule 4 of Order 2 declares that, in suits for the recovery of immovable property, only the claims specified in Clause (a), (b) and (c) of that rule can be joined; if any other claim is sought to be added, the leave of the Court must be obtained. The question that arises for determination is whether the suit out of which those proceedings have arisen falls within Rule 4 of Order 2 of the Code.
As stated above, the suit is for redemption of the mortgaged property on payment of the mortgage-debt and for declaration that the auction sale in civil case No. 722 of 1929 is null and void and not binding on the Plaintiffs. Clearly if the suit for redemption can be regarded as a suit for the recovery of immovable property, the claim for declaration that the auction-sale is null and void cannot be joined in this suit.
Having given the matter my anxious consideration I find that a suit for the redemption of immovable property cannot be regarded as a suit for the recovery of immovable property within the meaning of Rule 4 of Order 2 of the Code. Reference on this point may be made to Section 16, Code of Civil Procedure, Articles 4 and 6 of Schedule 2, Provincial Small Cause Courts Act, 1887, and Article 148, Limitation Act, 1908.
Article 148, Limitation Act, applies to two classes of suits, namely, suits to redeem mortgages and suits to recover possession of immovable property mortgaged. Now, a right to redeem is a right to require the mortgagee, on payment of the mortgage money, to do the various things referred to in Section 60, Transfer of Property Act. One of the things that a mortgagor can require the mortgagee to do is to deliver possession of the mortgaged property to the mortgagor. In Article 148 a clear distinction is made between suits to redeem mortgages and suits to recover possession of immovable property mortgaged and both on principle and authority a suit for possession of the mortgaged property, where no payment is to be made by the mortgagor, is not a suit for redemption within Article 148.
Section 16, Code of Civil Procedure, 1908, reads:
Subject to the pecuniary or other limitations prescribed by any law, suits-
(a) for the recovery of immovable property with or without rent or profits.
(b) * * * *
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) * * * *
(e) * * * *
(f) * * * *
shall be instituted in the Court within the local limits of whose jurisdiction the property is situate.
In plain English Section 16 implies that a suit for the redemption in the case of a mortgage of immovable property is not a suit for the recovery of immovable property within the meaning of Section 16 and I feel certain that the words "a suit for the recovery of immovable property" used in Order 2, Rule 4, CPC are used in the sense in which those words are used in Section 16 of the Code.
This view receives support from the provisions of the proviso to Order 2, Rule 4, Code of Civil Procedure. The proviso enacts:
Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.
Then Article 4 of Schedule 2, Provincial Small Cause Courts Act, 1887, excepts from the jurisdiction of the Court of Small Causes a suit for the possession of immovable property or for the recovery of an interest in such property, whereas Article 6 excepts inter alia a suit by a mortgagor of immovable property for the redemption of the mortgage from the jurisdiction of the Court of Small Causes.
From what I have said above it appears that there is a real distinction between a suit for the recovery of immovable property and a suit for the redemption of the immovable property mortgaged, and that the words "a suit for the recovery of immovable property" used in Rule 4 of Order 2, Code of Civil Procedure, do not include a suit for the redemption of the immovable property mortgaged. Rule 4 of Order 2 refers to suits for the recovery of immovable property where the title to that property is in dispute while in suits for redemption the mortgagor''s right of redemption is exercised by the payment or tender to the mortgagee at the proper time and at the proper place of the mortgage money. In a suit for redemption a preliminary decree is to be passed under Order 34, Rule 7 of the Code, fixing a time within which the mortgagor is to pay the amount found due, and providing for what is to happen in default. In a redemption suit after the expiry of the date fixed for payment, a final, decree is passed under Order 34, Rule 8 of the Code inquiring the mortgagee to do the various things specified in Section 60, T.P. Act, 1882. Indeed a suit for possession of the mortgaged property, where no payment is to be made by the mortgagor is not a suit for redemption as contemplated by Section 16 of the Code.
For the foregoing reasons I feel no doubt that the trial Court was right in holding that Order 2, Rule 4 of the Code has no application to the present case.
As stated above Mr. Mittal urges that considering that the suit falls within Rule 3(1) of Order 2, Code of Civil Procedure, the Court was in error in directing the Plaintiffs to choose the cause of action with which they wished to proceed in civil Suit No. 204 of 1947.
Now, it was within the discretion of the trial Court to order separate trials even if the case was covered by Order 2, Rule 3(1), Code of Civil Procedure, Rule 6 provides:
Where it appears to the Court that, any causes of action joined in one suit cannot be conveniently tried or disposed of together, the Court may order separate trials or make such other order as may be expedient.
As set out in an earlier portion of this judgment in ordering separate trials the Court below has said that the prayer for declaration of Plaintiffs'' right is quite distinct from the prayer for redemption and that even the procedure for redemption is quite separate and is governed by Order 34, Code of Civil Procedure. In other words, the trial Court seems to think that the causes of action joined in Civil Suit No. 204 of 1917 cannot be con, veniently tried or disposed of together.
Now, the object of Rule 6 appears to be to prevent embarrassment in the trial of the suit. Considering, therefore, that the trial Court has exorcised a discretion vested in that Court under Rule 6 of Order 2 of the Code", I am not inclined to interfere in the discretion exercised by the trial Court except to the extent that I direct that the trial Court should deal with the two causes of action as sub-suits under the title and number of the principal suit from which they spring and should not order the Plaintiffs to file separate plaints. In doing so I have followed the procedure indicated in Inder Bahadur Singh Vs. Sita Ram and Others, In that case Collister J., said:
I do not think that it was the intention of the Legislature that, where the Court proceeds under Order 2, Rule 6, CPC the Plaintiff should be required to file separate plaints. In my opinion the proper order to pass in this case is that the applicant be given an opportunity so to amend his plaint that the allegation against each set of Defendants in respect to the various alienations shall be separately set out in order that separate Issues may be framed in respect to each such transaction, thus enabling the Court to try the suit in sections, each section forming part of the same proceeding; and when this has been done, the Court will proceed with the trial of the suit,
Following the rule laid down in Inder Bahadur Singh Vs. Sita Ram and Others, I allow this petition and set aside the order of the Court below and direct that the suit shall proceed in the manner indicated above. I make no order as to the costs of this petition.