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Judgment
We think that the view taken by the lower Courts that the jenmi''s title was extinguished by the order for sale obtained in the prior suit by the
melkanomdar is not correct. Tlie jenmi could not have worked out his rights in that suit as he was not entitled to pay the redemption money under
the decree, and as Section 93 of the Transfer of Property Act, which was then applicable, did not permit him to ask the Court for an order for sale
as he was not the mortgagee,though he was a defendant. Though he was a mortgagor he could not have applied under the authority of Govinda
Targan, C.P. v. Veeran 12 Ind. Cas. 432 : (1911) 2 M.W.N. 323: 36 M.k 32 as he was not then the plaintiff.
On the order for sale being made at the instance of the mortgagee the jenmi could not apply to have the sale carried out, whatever the rights of
the plaintiff might be. If the property had been sold his rights might have been affected thereby, but he would then have had the power u/s 310(a)
of the old CPC (corresponding to Order XXI, Rule 89) to apply to have the sale set aside on payment. In this case there was no sale.
Section 91 of the Transfer of Property Act extinguishes only the plaintiff''s right to redeem on an order for sale being passed, and it extinguishes
the security, i.e., the security of the mortgagee so far as the plaintiff is concerned.
Ordinarily a suit by a melkanomdar does not debar the jenmi from subsequently-suing to redeem, even if he was a party defendant to the
melkanomdar''s suit when questions of res judicata between co-defendants do not arise vide Kuttisseri Illath Raman Namboodri v. Achutha
Pishurodi 14 Ind. Cas. 415 followed in Veerapuda-yan v. Muthu Karuppa Thevan 19 Ind. Cas. 589: 13 m.l.t. 463 and Appeal Against Order
No. 52 of 1910.
We allow the appeal and remand the appeal to the lower Appellate Court for deciding the 4th issue and disposing of the appeal according to
law. Appellant will get his costs in this Court. Costs in the lower Courts will be provided for in the final decree.