JUDGMENT
1. This is a defendant's appeal in a suit for sale on a mortgage of 25th July 1918. Lalta Prasad defendant mortgaged certain immovable property under a deed of 25th July 1918. The mortgage is a simple mortgage and it provided that the mortgagor will pay the principal with interest in five years, that he will pay interest every six months and that the creditor will be entitled to recover the interest by a separate suit. The mortgage provided that on failure of payment of the principal and interest the mortgagee was entitled to recover the principal and interest from the mortgagor as well as from his other moveable and immovable property.
2. On 28th August 1925, that is after the principal money had become payable, the mortgagee instituted a suit in the Court of the Munsiff of Kaimganj for recovery of interest only due to him up to the date of suit. The plaintiff claimed a personal relief. After contest, that suit was decreed on 22nd October 1925. While that suit was pending the mortgagee instituted the present suit on 2nd September 1925, for the recovery of the principal amount payable under the mortgage. The defence of Lalta Prasad was that the plaintiff having brought a suit for interest only and having omitted to sue for the principal amount of money due under the mortgage in that suit, the claim was barred under Order 2, Rule 2, Civil P.C. The Court of first instance repelled the contention of the defendant, and granted a decree to the plaintiff as prayed. The defendant went up in appeal to the District Judge of Farrukhabad and his appeal was dismissed.
3. Defendant has now come up in appeal before us and it is contended by the learned advocate for the appellant that the claim of the plaintiff is barred under Order 2, Rule 2, inasmuch as on the date when the plaintiff instituted his suit for interest only, the whole of the mortgage money being payable, he not having claimed the amount of the principal money, the present suit must be deemed to be barred under Order 2, Rule 2. It is contended by the learned advocate for the appellant that under the explanation to Order 2, Rule 2 the cause of action in respect of the claim for interest and principal is the same and the plaintiff having relinquished a portion of his claim, or having omitted to sue, he cannot institute a fresh suit in respect of the portion so omitted or relinquished. In support of his contention he has referred to the explanation to Order 2, Rule 2 and he has further contended that in view of the pronouncement of their Lordships of the Privy Council in the case of Mohammad Hafiz v. Mohammad Zakariya A.I.R. 1922 P.C. 23 and the case of Kishen Narain v, Palamal A.I.R. 1922 P.C. 412 the plaintiff's claim is barred by the provisions of Order 2, Rule 2. It appears to us that what was held in those two cases has no bearing on the facts of this case. In our opinion the plaintiff's claim is not barred by Order 2, Rule 2, Civil P.C.Order 34, Rule 14 is as follows:
Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 2, Rule 2.
4. In our opinion the plaintiff had a right under the terms of the mortgage to recover the interest due on the mortgage from the defendant personally. Plaintiff had not sought in the first suit any relief as against the mortgaged property and under the provisions referred to above the mortgagee was entitled to recover the amount due on the mortgage in spite of the provisions of Order 2, Rule 2. Order 34, Rule 14 has been interpreted by this Court in various cases and it has been held that a mortgagee in spite of having sued for a simple money decree in respect of a claim arising under a mortgage was entitled to institute a suit for sale: see the case of Indarpal Singh v. Mewa Lal [1914] 36 All. 264. We are therefore of opinion that there is no force in this appeal and we dismiss it.