Right of redemption survives withdrawal of an earlier suit; compromise and part performance did not extinguish the mortgagee's claim.

A mortgagor's right of redemption remains a substantive incident of a subsisting mortgage and is not defeated merely because an earlier redemption suit was withdrawn or abandoned without leave under Order XXIII Rule 1 CPC. Extinguishment of the equity of redemption requires a legally effective transaction or decree recognised by Section 60 of the Transfer of Property Act; on the stated facts, the compromise relied on did not amount to such extinction. Section 53-A also could not apply because the essential possession requirement was absent. The result is that the mortgagor's right to redeem remained intact.

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Issues: (i) whether the mortgagor's second suit for redemption was barred because an earlier redemption suit had been abandoned without leave under Order XXIII Rule 1 of the Code of Civil Procedure, 1908; (ii) whether the equity of redemption had been extinguished by the parties' compromise under Section 60 of the Transfer of Property Act, 1882; (iii) whether the alleged agreement could be enforced under Section 53-A of the Transfer of Property Act, 1882.

Issue (i): whether the mortgagor's second suit for redemption was barred because an earlier redemption suit had been abandoned without leave under Order XXIII Rule 1 of the Code of Civil Procedure, 1908.

Analysis: The right of redemption is a substantive incident of a subsisting mortgage and continues until it is extinguished in the manner recognised by the Transfer of Property Act, 1882. The procedural bar in Order XXIII Rule 1 does not, by itself, extinguish that substantive right. A withdrawal or abandonment of an earlier redemption suit does not prevent a later redemption suit if the mortgage itself still subsists and the claim is otherwise within limitation.

Conclusion: The second redemption suit was not barred on that ground.

Issue (ii): whether the equity of redemption had been extinguished by the parties' compromise under Section 60 of the Transfer of Property Act, 1882.

Analysis: Extinguishment of the right to redeem must be shown either by act of the parties in a legally effective transaction or by the kind of decree contemplated by the statute. On the facts, the documents relied on showed only an agreement to convey the lands and a collateral arrangement in favour of the mortgagor's wife. There was no completed transfer, no proof of acceptance in full satisfaction, and no enforceable compromise that actually brought about extinction of the mortgagee's right. The evidence also showed repudiation and absence of bona fide performance.

Conclusion: The equity of redemption was not extinguished by the alleged compromise.

Issue (iii): whether the alleged agreement could be enforced under Section 53-A of the Transfer of Property Act, 1882.

Analysis: Section 53-A applies only where the transferee has taken or continued in possession in part performance of the contract. The mortgagees were neither in actual nor in constructive possession of the suit lands in pursuance of the agreement relied on. As the essential statutory condition of possession was absent, the doctrine of part performance could not be invoked.

Conclusion: Section 53-A had no application and could not defeat the mortgagor's right to redeem.

Final Conclusion: The procedural objections failed, the substantive right of redemption remained intact, and the matters were sent back for appropriate orders on the footing that the mortgagor retained the right to redeem.

Ratio Decidendi: A mortgagor's right of redemption is not defeated by mere withdrawal or abandonment of a prior redemption suit, and it can be lost only in the manner expressly recognised by Section 60 of the Transfer of Property Act, 1882; a conditional agreement unsupported by completed transfer or possession under Section 53-A cannot extinguish that right.

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