Mortgage suit not barred by prior refund claim; decree confined to the consideration actually proved by evidence.

A later mortgage suit was not barred by Order 2 Rule 2 or the res judicata principle in Explanation IV to Section 11 CPC where the earlier action had been framed as a refund claim on the footing that the mortgage was invalid and the causes of action were different. The court also held that the mortgage consideration was proved only to the extent of the admitted payments amounting to 3,000, with the remaining recitals unproved. The decree was therefore confined to the amount actually established, with corresponding adjustment of interest and deletion of the personal decree and surplus directions.

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Issues: (i) Whether the present suit on the mortgage was barred by the prior suit under Order 2, Rule 2 and Section 11, Explanation IV, Code of Civil Procedure; (ii) whether consideration for the mortgage was proved only to the extent of Rs. 3,000 and the decree required modification accordingly.

Issue (i): Whether the present suit on the mortgage was barred by the prior suit under Order 2, Rule 2 and Section 11, Explanation IV, Code of Civil Procedure.

Analysis: The earlier suit was treated as one for refund of money on the footing that the mortgage was invalid and the consideration had failed, not as a suit founded on the mortgage itself. The present suit was based on execution and enforcement of the mortgage deed. Since the causes of action were different, the plaintiff was not bound to include the mortgage claim as an alternative in the earlier suit, and the former litigation did not attract the bar of Order 2, Rule 2 or the principle embodied in Section 11, Explanation IV.

Conclusion: The suit was not barred by the prior litigation.

Issue (ii): Whether consideration for the mortgage was proved only to the extent of Rs. 3,000 and the decree required modification accordingly.

Analysis: On the evidence, only two items of consideration were established, namely the admitted payment of Rs. 500 before the Sub-Registrar and Rs. 2,500 paid to Badar-ud-Din Qureshi. The remaining recitals in the mortgage deed were not proved as actual consideration. The mortgage debt therefore stood supported only to the extent of Rs. 3,000, and the decree had to be adjusted by recalculating interest within the lawful limit and by setting aside the personal decree and the directions regarding surplus.

Conclusion: Consideration was proved only for Rs. 3,000, and the decree was reduced and modified accordingly.

Final Conclusion: The appeal succeeded only in part, resulting in substantial modification of the mortgage decree while rejecting the plea that the suit was barred by the previous proceedings.

Ratio Decidendi: A later suit on a mortgage is not barred under Order 2, Rule 2 or res judicata merely because an earlier suit between the same parties was framed as a claim for refund on the footing that the mortgage was invalid; where only part of the recited consideration is proved, the decree must be confined to the amount actually established by evidence.

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