JUDGMENT : Banerji, J.:— On the 6th of August, 1873, one Muhammad Azam made a usufructuary mortgage of a shop, the term of the mortgage being 20 years. It was agreed in the mortgage deed that the usufruct was to be taken in lieu of interest, and that redemption was to take place on payment of the principal. The mortgage deed further stipulated that in the event of the shop proving insufficient for the discharge of the mortgage, the mortgagee was to recover any balance due to him “from a dwelling house” which was specified in the mortgage deed. It is clear, and it is indeed admitted, that the dwelling house was a part of the mortgaged property. That house was sold subsequently to the mortgage in execution of a simple money decree subject to the mortgage, and has now passed to the defendants-respondents. In the year 1888, before the expiry of the term of the mortgage, the plaintiff brought a suit for recovery of the money secured by the mortgage, and a further sum of Rs. 70 which he said, he had spent in repairing the mortgaged shop. The claim embraced a prayer for the sale of the shop, and in the event of the proceeds of that sale being insufficient for the satisfaction of the mortgage money for the sale of the dwelling house. The suit was not resisted by the heirs of the mortgagor who had died in the meantime. On the contrary some of them appeared and confessed judgment. The present defendants-respondents resisted the claim mainly on the ground that no cause of action had accrued to the plaintiff, and the suit brought before the expiry of the 20 years' term of the mortgage was premature. The Court of first instance found in their favour and held that the plaintiff had no right to bring his suit before the expiry of the 20 years. It accordingly dismissed the claim against the present defendants, but, having regard to the facts that some of the heirs of the mortgagor had admitted the claim, it made a decree against those heirs for the sale of the shop with which the mortgagor was concerned. It accordingly dismissed the claim against the present defendants, but, having regard to the facts that some of the heirs of the mortgagor had admitted the claim, it made a decree against those heirs for the sale of the shop with which the mortgagor was concerned. The plaintiff appealed and his appeal was dismissed by the lower appellate Court, that Court agreeing with the Court of first instance that no cause of action for the suit had arisen and that the suit was premature. The Court, however, made a decree against all the heirs of the mortgagor for the sale of the shop, and dismissed an objection preferred by the defendants under section 561 of the Code of Civil Procedure to the effect that upon the Court's finding that the suit was premature, the whole suit ought to have’ been dismissed. That decree of the lower appellate Court became final, and in execution of it the mortgaged shop has been sold, and a sum of Rs. 425 has been realised. The plaintiff brought the present suit to recover the balance due to him out of the total mortgage money, that is to say, the principal, interest and costs, and for the sale of the dwelling house comprised in the mortgage, as mentioned above and now in the possession of the defendants. The Court of first instance made a decree in favour of the plaintiff for a part of the amount claimed, but the lower appellate Court gave him a decree for the full amount claimed. The defendants appealed to this Court, and the learned single Judge of this Court before whom the appeal came, dismissed the suit mainly on the ground that the plaintiff's remedy was an application for a decree under section 90 of the Transfer of Property Act, and a second suit was consequently not maintainable. “On the 6th of August, 1878, a second suit was consequently not maintainable.” 2. The plaintiff preferred an appeal under section 10 of the Letters Patent 3. “On the 6th of August, 1878, a second suit was consequently not maintainable.” 2. The plaintiff preferred an appeal under section 10 of the Letters Patent 3. Sundar Lal (with him Lalit Mohan Banerji), for the appellant, contended that the decree of the Courts in the first suit holding that the cause of action for the sale of the dwelling-house had not till then arisen was res judicata, and the twenty years, as provided in the mortgage-deed, having elapsed, the plaintiff was entitled to bring this suit for sale of the dwelling house. 4. Right or wrong, that decree had all the finality which a High Court decree, or for, the matter of that a decree of the Privy Council would have had. The suit, therefore, had been wrongly dismissed as barred under section 244 of the Code of Civil Procedure. 5. J.N. Chaudri, for the respondents, urged that no question of res judicata arose. In a sense the suit was barred by section 244 of the Code of Civil Procedure. The mortgage having merged in the decree, there was now one judgment-debt, and the mortgage had ceased to exist. Under the circumstances, the mortgagee could not split up the debt and sue to recover a portion twenty years after. 6. The judgment of the Court, after setting out the facts as above, proceeded thus:— We are unable to agree in that view. It is manifest from the terms of the mortgage deed, and is indeed conceded that the dwelling house is a part of the property comprised in the mortgage. That being so, no application could be made under section 90 of Act No. IV of 1882 for the sale of the dwelling house, it being a part of the mortgaged property. Section 244 of the Code of Civil Procedure could not apply, inasmuch as the Court having dismissed the plaintiff's claim for the sale of the dwelling house, the plaintiff could not in execution of that decree apply for such sale. We have therefore to consider whether there is any other bar to the maintenance of the present suit. Section 244 of the Code of Civil Procedure could not apply, inasmuch as the Court having dismissed the plaintiff's claim for the sale of the dwelling house, the plaintiff could not in execution of that decree apply for such sale. We have therefore to consider whether there is any other bar to the maintenance of the present suit. It is clear from the terms of the mortgage, and having regard to the findings arrived at in the first suit that that suit was premature and could not be brought until after the expiry of the full terms of the mortgage no order could be made in the previous proceedings for the sale of the dwelling house. That is what the Court held in that case, and in so far as the Court in the former proceedings made a decree for the sale of the shop which was a part only of the mortgaged property, it probably acted erroneously. But whether it acted rightly or wrongly, the Court held as regards the property now in dispute that no cause of action had then accrued to the plaintiff. That is a decision binding between the parties, and upon the terms of the mortgage it is clear that the plaintiff's cause of action in regard to the property, which he now seeks to sell, only arose on the expiry of the term of the mortgage and on the proceeds of the sale of the shop mentioned in the mortgage deed proving insufficient for the satisfaction of the plaintiffs claim. What the plaintiff ought to have done was to have brought a suit after the expiry of the term of the mortgage for the recovery of the mortgage money by sale of both the properties “mentioned in the mortgage the Court declaring the order in which each of those properties was to be sold. However, in the first suit the plaintiff got a decree for a part of his claim, namely, for the sale of one of the two properties, the sale of which he had claimed in his suit. That decree cannot be a bar to the maintenance of the present suit. However, in the first suit the plaintiff got a decree for a part of his claim, namely, for the sale of one of the two properties, the sale of which he had claimed in his suit. That decree cannot be a bar to the maintenance of the present suit. Indeed, it would be working great hardship and injustice to the plaintiff if the defendants were allowed to defeat the first suit on the ground that it was premature and to defeat present suit on the ground that the present claim ought to have, been included in the first claim. The mere fact that a decree was passed in respect of this mortgage does not in our judgment extinguish the plaintiffs security in regard to the property which was excluded from the decree in the prior suit. We think that the Courts below were right in holding that the plaintiff's suit was maintainable. We are also of opinion that the lower appellate Court has rightly decreed the whole of the plaintiff's claim. Under the mortgage the plaintiff is entitled to recover from the house such balance as might remain due to him upon the mortgage, that is, for principal, interest, and costs, besides costs of repairs, after the sale of the shop. It is this balance which the lower appellate Court has decreed to the plaintiff, and we think the Court was right. We accordingly allow the appeal and setting aside the decree of this Court with costs, restore that of the lower appellate Court.