Law: Civil Procedure Code (V of 1908)

Section: 2

Civil Procedure Code' (V of 1908), O. Il, r. 2 Mortgage with possession not for fixed period Interest payable from month to month Lease deed executed by mortgagor simultaneously with execution of mortgage Mortgage and lease forming one transaction-- Two distinct obligations in favour of mortgagee, viz: to realise interest by proceeding against the mortgagor and to recover mortgage amount by proceeding against mortgaged property --First suit for recovery of rent decreed --Subsequent suit for principal and interest not barred. In a mortgage deed interest was expressly made payable from month to month which indicated the intention of the parties that while the cause of action to proceed against the mortgage security was to remain intact, mortgagee was authorised to maintain a suit for realisation of interest after the expiry of each month. The execution of the lease deed by the mortgagor simultaneously with the creation of the mortgage also pointed in the same direction because that authorised the mortgagor to recover: interest in the form of rent as an independent obligation. Held, the mortgage and the agreement of lease formed one transaction, but it gave rise to two distinct obligations in favour of the mortgagee, namely, to realise interest by proceeding against the person of mortgagor and to recover the mortgage amount by proceeding against the mortgaged property. The provisions of Order II, rule 2, C. P. C., did not bar the suit for the recovery of principal and interest although the amount of rent claimed in the former suit was in reality interest due on the principal amount. Kishan Narain v. Pala Mal and others A I R 1922 P C 412 fol. Pindi Das and others v. Lal Chand A I R 1916 Lah. 296 ; Budha Shah v. Suleman and others A I R 1917 Lah. 260 ; Muhammad Hussain v. Abdul Ghafur Khan I L R 3 Lah. 1 ; Ralia Ram and another v. Amir Chand and others I L R 4 Lah. 52 ; Gurdial Singh v. Diwan Chand and others A I R 1928 Lah. 732 ; Kishan Narain v. Pala Mal and others A I R 1922 P C 412 ; Sultan Singh and another v. Joti Sarup and another A I R 1928 Lah. 269 ; Puthanpuravil Nittookandi Kappalli Krishan Kurup and another v. Kottikollon Mammad and others A I R 1932…

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