Venkatarama Ayyar, J.- This is an appeal by the plaintiff against the judgment and decree of the Subordinate Judge of Palghat dismissing O.S. No. 49 of 1945, which was an action by her to enforce a charge. The facts are not in dispute. One Bava Kutti died leaving behind a son Koyathan and two daughters Bee Pathumma and Sayeed Mal Umma. After the death of Kayathan on 18th October, 1929, his sister Bee Pathumma filed O.S. No. 36 of 1930 on the file of the Sub-Court, Ottapalam for partition of her share in the estate. This suit was transferred to SubCourt, Palghat, and was there numbered as O.S. No. 75 of 1932. The appellant Ammenumma is one of the daughters of Koyathan and was the 3rd defendant in that suit. On 23rd August, 1933, all the parties entered into a razinama, Ex. P-1 and a compromise decree was passed in terms thereof on 4th September, 1933, Ex. P. 6. This decree provides that Bee Pathumma was to take over the share of Ammenumma and pay her in lieu thereof a sum of Rs. 7,333-5-4 within one month and the payment of this amount was charged on the suit properties. The amount not having been paid Ammenumma filed O.S. No. 45 of 1938 on the file of the Sub-Court, Palghat for the recovery of a sum of Rs. 10,100 as due to her for principal and interest under the decree by enforcement of the charge. The suit was decreed after contest and a preliminary decree was passed on 12th December 1939, Ex. P. 2(a). Under this decree the amount due to the plaintiff as on 12th December, 1939, was declared to be Rs. 11,804-4-0. Clause 2 provided that the 1st defendant Bee Pathumma was to pay this amount with subsequent interest into Court on or before 12th February, 1940, and clause 3 directed that in default of payment the plaintiff was to apply for a final decree for sale of the property. Clause 4 provided that the sale proceeds should be applied in payment of expenses costs and the amounts due to the plaintiff; the balance if any, being payable to the 1st defendant. The other clauses are not material for the purpose of this case. Clause 4 provided that the sale proceeds should be applied in payment of expenses costs and the amounts due to the plaintiff; the balance if any, being payable to the 1st defendant. The other clauses are not material for the purpose of this case. It may be mentioned that the decree does not contain the usual clause for redemption that on payment of the mortgage amount the mortgagee shall deliver the title deeds and if necessary re-transfer the property to the mortgagor and put him in possession of the same. No amount was paid by the 1st defendant and the plaintiff filed I.A. No. 100 of 1941 for the passing of a final decree. That application was dismissed as fresh notice to the defendants was not taken. I.A. No. 843 of 1943 was filed for reviewing the order in I.A. No. 100 of 1941. That was also dismissed on 25th August, 1945. Vide Ex. P. 5. It is after this that the plaintiff has instituted the present suit on 3rd October, 1945, for recovery of the balance amount due under the razinama decree in O.S. No. 75 of 1932, by enforcing the charge created under that decree by sale of the suit property. The plaintiff has given credit for a sum of Rs. 2,516-6-0 received by her under the decree, Ex., P. 2(a) and also for certain other amounts and the balance claimed as due on the date of the suit is Rs. 10,733-2-8. Giving up Rs. 233-2-8 out of this, the claim is made for Rs. 10,500 with subsequent interest and costs. The 1st defendant Bee Pathumma contested the suit on the ground that it was barred by the rule of res judicata by reason of the proceedings in O.S. No. 45 of. 1938 and that it was barred by. limitation. Sayeed Mal Umma, the sister of the first defendant having died prior to the suit, defendants 4 to 7 were impleaded as her legal representatives. They contended that items 36 to 46 in the plaint schedule were allotted to Sayeed Mal Umma free of charge and that the plaintiff had no right to proceed against them. They also put forward various other claims. The 1st defendant having died pending the suit defendants 8 to 13 were brought on record as her legal representatives. They contended that items 36 to 46 in the plaint schedule were allotted to Sayeed Mal Umma free of charge and that the plaintiff had no right to proceed against them. They also put forward various other claims. The 1st defendant having died pending the suit defendants 8 to 13 were brought on record as her legal representatives. The suit was heard by the Subordinate Judge of Palghat who held that the present suit was barred by reason of the decree in O.S. No. 45 of 1938 which was for enforcement of the same charge and between the same parties, that the only right of the plaintiff was to pursue her remedies under that decree and that a second suit was not maintainable under section 11 of the Code of Civil Procedure. He also held that as the amount was payable under the compromise decree, Ex. P. 6 on 4th October, 1933, the suit, which was instituted on 3rd October, 1945 was within time and that there was no bar of limitation. With reference to the pleas put forward by defendants 4 to 7, he held that items 36 to 46 were not liable for the suit claim and that the defendants were not entitled to any other relief. In the result in view of his finding that the suit was barred by the rule of res judicata he dismissed it with costs. It is against this decree that the plaintiff has preferred this appeal. On behalf of the appellant it was argued by Mr. K. Kuttikrishna Menon that as the law is now well settled that a second suit for redemption by a mortgagor is maintainable subject only to the conditions mentioned in section 60 of the Transfer of Property Act it should likewise be held that a second suit for sale by a mortgagee is maintainable subject only to the conditions mentioned in section 67 of the Transfer of Property Act and that as there has been neither a decree for redemption nor any payment or deposit of the mortgage amount as provided in that section the mortgagee has a right to bring the present action for sale. No authority directly dealing with this question has been cited to us, as the respondents were not represented by counsel. In view of the importance of the question, we requested Mr. No authority directly dealing with this question has been cited to us, as the respondents were not represented by counsel. In view of the importance of the question, we requested Mr. N. Sivaramakrishna Iyer a senior advocate of this Court to assist us as amicus curiae and we are indebted to him for his learned arguments. The starting point for the argument on behalf of the appellant is the rule now well established that successive suits for redemption are maintainable so long as there is no decree of Court foreclosing that right and that the bar of res judicata is inapplicable to such suits. Vide Raghunath Singh v. Hansraj Kunwar1and China Subba Rao v. Mattapalli Raju2. Before discussing how far these decisions could be used as authority for the maintainability of successive suits for sale by a mortgagee, it is necessary to examine the principles underlying those decisions. It will be convenient to set out the relevant statutory provisions relating to the right of redemption and then refer to the authorities bearing on them. Section 60 of the Transfer of Property Act in so far as it is material for the present purpose provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, of the mortgage amount to redeem the mortgage; "provided that the right conferred by this section has not been extinguished by the act of the parties or decree of a Court." Section 92 of the Transfer of Property Act dealing with this right enacted that in a suit for redemption a decree is to be passed for taking of accounts or declaring the amounts due as on the date of the decree, that on the plaintiff paying the amount on or before a date to be fixed he could have redemption and that if no such payment was made he should be debarred from redeeming the property when the mortgage was by conditional sale or usufructuary mortgage or the property be sold, when it was a simple mortgage. Section 93 provided for the defendant applying for an order for foreclosure or sale as the case might be in case the mortgagor did not pay the amount and it was further enacted that the Court should in the former case pass an order that the plaintiff shall be foreclosed of his right to redeem the property and in the latter case pass an order for sale and that on the passing of such an order the plaintiff’s right to redeem and the security should both be extinguished. On these provisions the question frequently arose for decision whether a second suit for redemption would lie when a previous suit for the same relief had been decreed but the decree allowed to become barred by limitation. There was considerable authority in the Court for holding that a second suit was maintainable so long as the relationship of mortgagor and mortgagee subsisted. Vide: Sami v. Somasundaram1, Periandi v. Angappa2, Karuthasami v. Jagannatha3and Ramunni v. Brahma Dattan4. The question came up for consideration before a Full Bench of this Court in Vedapuratti v. Vallabha Valia Raja5. It will be useful to examine the reasoning on which the decision in this case rests. Vide: Sami v. Somasundaram1, Periandi v. Angappa2, Karuthasami v. Jagannatha3and Ramunni v. Brahma Dattan4. The question came up for consideration before a Full Bench of this Court in Vedapuratti v. Vallabha Valia Raja5. It will be useful to examine the reasoning on which the decision in this case rests. Sir Arnold White, C.J., stated the point for consideration in the following terms: "The answer to the question appears to me to depend not upon whether or not at the time of the bringing of the second suit the relation of mortgagor and mortgagee subsists between the parties but upon whether.....the mortgagor is precluded by the operation of the doctrine of res judicata by reason of the adjudication which he has already obtained, from bringing a second suit." After holding that the right to redeem had not been extinguished by the prior suit, the learned Chief Justice goes on to observe that "Though the right subsists, the remedy is barred by operation of the rule of law which is embodied in section 13 (corresponding to section 11 of the present Code) of the Code of Civil Procedure.......and that it is immaterial whether or not the decree in the first suit directs that if the mortgagor does not pay as ordered by the Court the equity of redemption should be foreclosed or the property should be sold." Bashyam Iyengar, J., dealing with the argument that the suit for redemption was maintainable so long as the relationship of mortgagor and mortgagee subsisted observed as follows: "With all deference to the learned Judge I find it impossible to adopt the reasoning on which the decisions of this Court in Sami v. Somasundaram1, Periandi v. Angappa2, Karuthasami v. Jagannatha3 and Ramunni v. Brahma Dattan4, proceed and the conclusions arrived at therein. If those decisions are sound there can be no limit to the number of successive suits for redemption for the same mortgage and the fundamental principle on which the doctrine of res judicata is founded will have to be wholly ignored. If the principles of these decisions be-as it must-that so long as the relation of mortgagor and mortgagee is not extinguished by act of parties or by order of Court under section 87, 89 or 93 of the Transfer of Property Act or by section 28 of the Limitation. If the principles of these decisions be-as it must-that so long as the relation of mortgagor and mortgagee is not extinguished by act of parties or by order of Court under section 87, 89 or 93 of the Transfer of Property Act or by section 28 of the Limitation. Act, the right of redemption is inseparable from such relation and that, therefore, there can be no impediment to the mortgagor’s bringing a suit for redemption although he had already obtained a decree for redemption it will necessarily follow that he can institute in succession as many suits as he chooses for.....foreclosure or sale; for the right of redemption and the mortgage security are not extinguished until the passing of an order for foreclosure absolute or for sale;" - And again "In considering whether the plea of res judicata operates as a bar to the suit, the question is not whether the alleged relation of mortgagor and mortgagee or any other legal relation between the parties to the suit subsists, but whether assuming the same to subsist, the plaintiff is not precluded from seeking to enforce his right by reason of his having already sued upon the same cause of action and’ obtained an adjudication which it was competent for him to enforce and execute. Dealing with the language of section 60 of the Transfer of Property Act the learned Judge held that by virtue of section 2-A of the Transfer of Property Act the provision of other enactments remained unaffected and that therefore the rights conferred by section 60 were controlled by the rule of res judicata enacted in the Code of Civil Procedure; vide page 319 and he referred to the well established principle that a remedy might be barred even though the right might not be extinguished and expressed the view that for the same reason a second suit for redemption might be barred if a prior suit had been dismissed under section 102, now Order 9, rule 8, Civil Procedure Code or withdrawn without leave of the Court under section 373, now Order 23, Rule 1, Civil Procedure Code. The other learned Judges concurred in this view. The other learned Judges concurred in this view. The ratio of this decision is that though the relationship of mortgagor and mortgagee might subsist by reason of the provisions of the Transfer of Property Act the rights conferred by that Act are subject to other provisions of law and that, therefore the right to redeem conferred by section 60 of the Act is controlled by such provisions as section 11, Order 9, rule 9, and Order 23, Rule 1, Civil Procedure Code. Then we come to the decision of the Privy Council in Raghunath Singh v. Hansraj Kunwar1, In that case a decree for redemption had been made in 1896 declaring the amount payable by the mortgagor as on 15th November, 1896, providing for redemption on payment of the amount and further providing that “in case of default his case will stand dismissed.” The amount was not paid. On 5th March, 1924, a second suit for redemption was filed by the legal representatives of the mortgagor and the plea put forward was that it was not maintainable. The Courts in India overruled this plea and granted a decree for redemption. The mortgagee appealed to the Privy Council and on his behalf three contentions were put forward: 1. that the remedy of the mortgagor was in execution of the decree of 1896; 2. that the second action was barred under section 11 of the Code of Civil Procedure; and 3. that in substance the decree in the prior suit was one of foreclosure. Dealing with the second contention that the action was barred by the doctrine of res judicata the Privy Council observed as follows: “In regard to the second point their Lordships are of opinion that no relevant question of res judicata here arises. The issues decided in the former suit were (1) whether the mortgagors were then entitled to redeem; (2) the amount then to be paid if redemption then took place. The issues decided in the former suit were (1) whether the mortgagors were then entitled to redeem; (2) the amount then to be paid if redemption then took place. The issues in the present suit are (1) whether the right to redeem now exists, and (a) the amount now to be paid if redemption now takes place.” and “It is sufficient to say in regard to the second point, that if the appellants fail to establish under their third point that the old decree extinguished the right to redeem, there is in their Lordships’ opinion no ground for saying that the old decree operated by way of resjudicata so as to prevent the Courts under section 11 of the Code of Civil Procedure, from trying the present suit.” Dealing with the third point the Judicial Committee examined sections 60, 92 and 93 of the Transfer of Property Act and held that the decree passed in 1896 was not one which foreclosed the right of redemption and in the result the second suit for redemption was held maintainable. According to the decision of the Judicial Committee, therefore, section 60 of the Transfer of Property Act is the paramount provision; under that section the question is whether the right to redeem has been extinguished by act of parties or decree of Court and where there has been no such extinguishment, an action for redemption will be available to the mortgagor notwithstanding that there was a prior action. Dealing particularly with the question of res judicata the Privy Council observed that the issues involved in the two suits were different because the right of redemption and the amount to be paid for redemption would be different at the two dates. That is to say the cause of action is not the same and the principle of res judicata would be inapplicable. We may now consider the decision of this Court reported in Mattapalli Raju v. Venkata Raghavayya1. The facts of that case were that the mortgagor executed a simple mortgage on 2nd January, 1914 and a usufructuary mortgage on 27th November, 1915. The mortgagor filed a suit for redemption O.S. No. 53 of 1929 but withdrew it without obtaining the permission of the Court for instituting a fresh suit. The facts of that case were that the mortgagor executed a simple mortgage on 2nd January, 1914 and a usufructuary mortgage on 27th November, 1915. The mortgagor filed a suit for redemption O.S. No. 53 of 1929 but withdrew it without obtaining the permission of the Court for instituting a fresh suit. The question arose whether he was precluded by the terms of Order 23, rule 1, Civil Procedure Code from filing a fresh suit for redemption. Dealing with the contention that the suit was maintainable under section 60 of the Transfer of Property Act notwithstanding the bar under Order 23, rule 1, Civil Procedure Code, the Court observed as follows: “It is however urged for the mortgagor that redemption actions stand on a special footing as mortgagors have a statutory right to redeem under section 60 of the Transfer of Property Act at any time after the mortgage money has become due and they can be deprived of such right only in the manner contemplated in that section, and that, therefore, Order 23, rule 1 cannot bar the exercise of such right until it is extinguished”by act of the parties or by a decree of a Court.“Reliance is placed in support of this argument on the decisions of the Judicial Committee in Raghunath Singh v. Hansraj Kunwar2, and Sri Raja Papamma Rao v. Sri Vira Pratapa Korkonda H.V. Ramachandra Razu3. It is true that section 60 confers upon a mortgagor a right to redeem on certain conditions,”provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court.“But this enactment cannot have the effect of overriding other statutory provisions which may limit or bar the exercise of such right in certain circumstances. Order 23, Rule 1 contains no saving provision in favour of suits for redemption and there is nothing in section. 60 of the Transfer of Property Act to qualify the operation of that rule in such suits”. In the result, it was held that the second suit was not maintainable. In Raja Ram v. Ramchandra4, the facts were that while a suit for redemption was pending the plaintiff died; no legal representatives were brought on record and the suit was dismissed under Order 22, Rule 9, Civil Procedure Code as having abated. In the result, it was held that the second suit was not maintainable. In Raja Ram v. Ramchandra4, the facts were that while a suit for redemption was pending the plaintiff died; no legal representatives were brought on record and the suit was dismissed under Order 22, Rule 9, Civil Procedure Code as having abated. The question arose whether a later suit for redemption by the legal representatives was barred under that provision. In holding that it was not, Chagla, J., delivering the judgment of the Full Bench observed: “Now the Civil Procedure Code deals with procedure relating to all suits. There is a special law, which deals with rights of mortgagors and mortgagees, and that law is to be found in the Transfer of Property Act.” After setting out the provisions of section 60 of the Transfer of Property Act, the learned Judge went on to observe: “Therefore in our opinion, the general provisions of the Civil Procedure Code as contained in Order 22, rule 9 are to that extent -overriden by the specific provisions of section 60 of the Transfer of Property Act. So long as the relationship of mortgagor and mortgagee continues, and so long as the right to redeem has not been extinguished by a decree of the Court, or by the act of the parties, the mortgagor is entitled to go to a Court of law to enforce his right. Of course, the position with regard to limitation is different, because the Limitation Act expressly provides that the period of limitation for redemption suits is sixty years.” Reference was then made in Shridhar Sadba v. Ganu Mahadu5, where it was held that the dismissal of a redemption suit for default did not bar the second suit for redemption under Order 9, rule 9; and to Ramchandra Kolaji v. Hanmanta Laxman6 where the withdrawal of a redemption suit without permission was held not to bar the second suit for redemption under Order 23, rule 1. It was held that the causes of action for the two suits were different. The decision in Mattapalli Raju v. Venkata Raghavayya1, was taken in appeal and the same was heard by the Federal Court. It was held that the causes of action for the two suits were different. The decision in Mattapalli Raju v. Venkata Raghavayya1, was taken in appeal and the same was heard by the Federal Court. Vide China Subba Rao v. Mattapalli Raju7, Kania, C.J., delivering the judgment of the Court referred to divergent views held by this Court and the Bombay High Court and observed: “In our opinion the view of the Madras High Court is incorrect. We prefer the view taken by the Bombay High Court on this point. The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage itself subsists. As held by the Privy Council in Raghunath Singh v. Hansraj Kunwar1, the right of redemption can be extinguished as provided in section 60 of the Transfer of Property Act and when it is alleged to have been extinguished by a decree, the decree should run strictly in accordance with the form prescribed for the purpose. Unless the equity of redemption is so extinguished, a second suit for redemption by the mortgagor, if filed within the period of limitation, is not therefore barred. The Board expressly held that if the appellants failed to establish that the old decree extinguished the right to redeem, there was no ground for saying that the old decree operated as res judicata and the Courts were prevented from trying the second suit under section 11 of the Code of Civil Procedure. They, therefore, held that the right to redeem was not extinguished by the procedural provisions contained in the Civil Procedure Code.” Dealing with the objection based on Order 23, rule 1, Civil Procedure Code, the Court referred to the observations in Raghunath Singh v. Hansraj Kunwar1, that the causes of action in the two suits were different and observed as follow: “The Board held in that case that the trial of these issues was not barred under section 11 of the Civil Procedure Code. It follows therefore that if the right of redemption is not extinguished, provisions like Order 9, rule 9, or Order 23, rule 1 will not debar the mortgagor from filing a second suit because, as in a partition suit, the cause of action in a redemption suit is a recurring one. It follows therefore that if the right of redemption is not extinguished, provisions like Order 9, rule 9, or Order 23, rule 1 will not debar the mortgagor from filing a second suit because, as in a partition suit, the cause of action in a redemption suit is a recurring one. The cause of action in each successive action, until the right of redemption is extinguished or a suit for redemption is time barred, is a different one.” In this view it was held that the second suit was maintainable. The result of the above authorities may thus be summed up: (1) the provisions of the Transfer of Property Act relating to mortgages form a special law and the rights and liabilities of mortgagors and mortgagees have to be worked out in accordance with those provisions; (2) the right to redeem is an incident of the relationship of mortgagor and mortgagee. It subsists so long as that relationship subsists and is enforceable under section 60 of the Transfer of Property Act so long as it subsisted; (3) a second suit for redemption which is not barred by section 60 of the Transfer of Property Act will not be barred under section 11 of the Code of Civil Procedure because the special provisions of section 60 of the Transfer of Property Act will override the general provisions of the Civil Procedure Code; Generalia specialibus non-derogant; and because the cause of action for the later suit is not the same as in the earlier suit inasmuch as the right to redeem is a continuing and recurring right. For the same reasons a second suit for redemption will not be barred by the provisions of Order 9, rule 9, Order 22, rule 9, and Order 23, rule 1, Civil Procedure Code. Applying these principles to a second suit for sale by a mortgagee, it has first to be seen whether such a suit could be maintained under the provisions of Transfer of Property Act. The right to obtain a decree for sale of the mortgaged property is conferred by section 67 of the Transfer of Property Act. Applying these principles to a second suit for sale by a mortgagee, it has first to be seen whether such a suit could be maintained under the provisions of Transfer of Property Act. The right to obtain a decree for sale of the mortgaged property is conferred by section 67 of the Transfer of Property Act. That section, so far as it is material for the present purpose, runs as follows: “The mortgagee has at any time after the mortgage money has become due to him and before a decree has been made for the redemption of the mortgaged property, or the mortgage money has been paid or deposited, a right to obtain from the Court a decree that the mortgagor shall be absolutely debarred of his right to redeem the property, or a decree that the property be sold.” The section deals with suits both for foreclosure and for sale and the provisions contained therein must be read distributively in relation to the two subjects. So read, the section enacts that (1) a suit for foreclosure can be filed after the mortgage amount has become due and before a decree for redemption has been made and (2) a suit for sale can be filled after the amount has become due and before it has been paid or deposited in the manner provided. It has been suggested that there is nothing in section 67, corresponding to the proviso in section 60 on which the decisions in Raghunath Singh v. Hansraj Kunwar1, and China Subba Rao v. Mattapalli Raju2, were based and that, therefore the considerations applicable to a second suit for redemption would not be applicable to a second suit for sale. But what is enacted in the form of a proviso to section 60 is enacted as part of the section itself in section 67 and in substance the position is not different. Even the differences in the form in the draftsmanship of the two sections might be due to the fact that while section 60 deals only with the right to redeem, section 67 deals with both the right to foreclosure and the right to sale and the language had to be adopted to cover both the rights. Thus on the language of section 67 this action is clearly maintainable as the mortgage money had not been paid. Thus on the language of section 67 this action is clearly maintainable as the mortgage money had not been paid. As already mentioned there is not even the usual clause for redemption in the decree, Ex. P.-2(a). We may now turn to the provisions of Order 34, Civil Procedure Code and see what light they throw on the point now under consideration. Rules 2 and 3 deal with suits for foreclosure; rules 4 and 5 with suits for sale and rules 7 and 8 with suits for redemption. Rule 2 enacts that the preliminary decree in a suit for foreclosure shall order an account of the amount due or declare it as on the date of the decree; direct that on payment of such amount by defendants there shall be redemption; that in default of such payment the mortgagee shall be entitled to apply for foreclosure. The Court has the power to extend the time for payment. Rule 3 provides for a final decree being passed in terms of rule 2. Dealing with suits for sale rule 4 enacts that a preliminary decree has to be passed in the same terms as the decree in rule 2; that is to say, the amount payable should be ascertained as on the date of the decree; time for payment should be fixed and provision should be made for redemption on payment within time. The only difference in the form of the decree is that in case of default in payment by the mortgagor, the mortgagee is to apply for a decree for sale and not for foreclosure. The preliminary decree in a suit for redemption under rule 7 is to contain the same directions as a preliminary decree for foreclosure suit under rule 2 and is to provide for the taking of accounts, declare the amount payable fixing a date for payment and provide for redemption on payment. In default of payment by the plaintiff, the defendant, mortgagee, is entitled to apply for a final decree for sale or for foreclosure according to the character of the mortgage which is the subject matter of the suit. Rule 8 provides for the passing of an appropriate final decree. In default of payment by the plaintiff, the defendant, mortgagee, is entitled to apply for a final decree for sale or for foreclosure according to the character of the mortgage which is the subject matter of the suit. Rule 8 provides for the passing of an appropriate final decree. It will thus be seen that whatever be the nature of the suits the preliminary decrees to be passed therein are in substance the same; the amount due to the mortgagee is to be ascertained, a time is to be fixed for payment of the amount, with a power in the Court to extend the same and redemption is to be decreed on payment by the mortgagor. Thus all the three decrees run on the same lines. It is only in the case of default in payment that there is a difference in the form of the final decree to be passed; it will be a foreclosure decree in some cases and a decree for sale in others. This difference in the character of the final decree arises out of the difference in the nature of the mortgages and has no relation to the difference in the nature of suits filed thereon, whether it is for foreclosure, for sale or for redemption. From the foregoing review of the statutory provisions it will be abundantly clear that whatever the nature of the suit that is filed on a mortgage the rights and liabilities of the mortgagor and the mortgagee are the same. On principle it cannot be otherwise. In law the right to redeem and the right to foreclosure are co-extensive; and the right to sell is, under the Indian Law, a substitute for the right to foreclosure, in the case of certain mortgages. In view of the fact that a mortgage transaction creates one jural relationship involving reciprocal rights and obligations between mortgagor and mortgagee, it will be illogical to hold that principles applicable to one of them are not applicable to the other. Differentiation in the mutual rights and obligations of the mortgagor and mortgagee must inevitably result in anomalies in the administration of the law of mortgages. By way of illustration we can take the case of a usufructuary mortgage with a personal covenant. Differentiation in the mutual rights and obligations of the mortgagor and mortgagee must inevitably result in anomalies in the administration of the law of mortgages. By way of illustration we can take the case of a usufructuary mortgage with a personal covenant. The mortgagee files a suit for sale on the basis of the covenant to pay; the suit is decreed but the execution of the decree becomes time barred. The law as now settled is that this decree does not preclude the mortgagor from filing a suit for redemption. In that suit it is open to the defendant, mortgagee, to apply for a decree for sale under Order 34, rules 7 and 8. How is this to be reconciled with the view that the suit for sale by him is barred under section 11, Civil Procedure Code? If the decree in the prior suit operates to extinguish the right of the mortgagee to sell the hypotheca which right thereafter becomes merged in the decree and could be exercised only thereunder, on what principle can a fresh decree for sale be passed in his favour in the mortgagor’s suit for redemption? The theory that the original cause of action is gone-Transit in rem judication-which is the foundation of the doctrine of res judicata will be a bar to the grant of that relief in the mortgagor’s action as well. It will be contrary to the provisions of the statute to hold in such a case that the mortgagor can get a decree for redemption under rules 7 and 8 but that no decree for sale could be passed in favour of the mortgagee under those provisions. The view that, on principle, suits for sales stand on the same footing as suits for redemption derives considerable support from the judgment of Bashyam Iyengar, J., in Vedapuratti v. Vallabha Valid Raja1. He no doubt held that a second suit for redemption was barred, a view which has now been rejected but in discussing the legal position he examines both sections 60 and 67 of the Transfer of Property Act and proceeds on the view that the rights under both the sections are correlative. Vide pages 319 and 320. He also examines the provisions of the Act relating to the form of decree to be passed in suits for redemption, sale and foreclosure and. Vide pages 319 and 320. He also examines the provisions of the Act relating to the form of decree to be passed in suits for redemption, sale and foreclosure and. observes: “that whether the decree be in a suit for foreclosure or in a suit for sale or in a suit for redemption there is in each a conditional decree for redemption in favour of the mortgagor, the condition being the payment by the mortgagor of the amount decreed on or before the day fixed.” Dealing particularly with the plea of res judicata the learned Judge referred to the decision in Maloji v. Sagaji2, where a prior suit for redemption by a mortgagor was held to bar a subsequent suit for sale by a mortgagee, notwithstanding that the prior decree did not provide for sale in default of payment and observed as follows: “Whether or not the decision that the subsequent suit for sale which was brought by the defendant in the former suit was barred by the decree in the first suit is strictly warranted by section 13. (Explanation II) of the Civil Procedure Code, it is certainly in conformity with section 67 of the Transfer of Property Act which provides that a mortgagee can bring a suit for foreclosure or sale only before a decree has been made for redemption of the mortgaged property. It is, therefore, of the highest importance that decrees in mortgage suits should be complete not only so far as the rights of the plaintiff are concerned, but also in so far as the rights of the defendant are concerned; and the fact that the decree is imperfect will not enable the defendant to enforce his rights under the mortgage as plaintiff in a suit subsequently to be brought by him, if such rights could have been enforced by him in the former suit and provided for in the decree passed therein.” A converse case to that decided in Maloji v. Sagaji2, came up for consideration in Ranga Iyengar v. Narayana Chariar3. There a usufructuary mortgagee obtained a decree for sale but it was not executed. He, however, continued in possession of the properties. The mortgagor then filed a suit for redemption. It was held following the observations of Bashyam Iyengar, J., in Vedapuratti v. Vallabha Valia Raja1, that the second suit was barred. The following observations of Sadasiva Iyer, J., may be quoted. He, however, continued in possession of the properties. The mortgagor then filed a suit for redemption. It was held following the observations of Bashyam Iyengar, J., in Vedapuratti v. Vallabha Valia Raja1, that the second suit was barred. The following observations of Sadasiva Iyer, J., may be quoted. “A decree for redemption is almost invariably a conditional decree whether it is passed in. mortgagee’s suit for sale or a mortgagor’s suit for redemption. No doubt where it is passed in a mortgagee’s suit for sale it is not usually passed on the invitation of the mortgagor (defendant) and in the language used in Adipurnam Pillai v. Gopalaswami Mudali4, ”the defendant is a decree-holder in spite of himself, an involuntary decree-holder.“But I do not see how this could on principle make any difference in the decision of the question whether the mortgagee-defendant who has been given such a decree is entitled only to execute that decree or whether he is entitled to bring a fresh suit for redemption despite the doctrine of res judicata.” The facts in Ellarayyan v. Nagasami Iyer5, were similar to those in Ranga Aiyengar v. Narayana Chariar3. There was a prior decree for sale in a usufructuary mortgagee’s. suit based on the personal covenant; it remained unexecuted and became barred and a suit for redemption was instituted by the mortgagor. There was a prior decree for sale in a usufructuary mortgagee’s. suit based on the personal covenant; it remained unexecuted and became barred and a suit for redemption was instituted by the mortgagor. In holding that this suit was not maintainable, Wallace, J., observed: “It follows then that, after a decree in a mortgage suit whatever the form of that decree, whether for foreclosure, sale or redemption, the parties to the mortgage and to the suit and their legal representatives or assignees cannot maintain in future any separate suit or any claim arising out of the mortgage.” Madhavan Nair, J., observed at page 711: “It is no doubt true that in the present case the decree in the prior suit was one for the sale of the properties and not for redemption; but if we have regard to the real nature of the decree for sale passed under sections 88 and 89 of the Transfer of Property Act, it will be found that this difference does not really make the decision inapplicable.” All these authorities proceed on the view that on the provisions of the Transfer of Property Act and Order 34, Civil Procedure Code, the nature of the suit that is laid on the mortgage makes no difference in the rights of the mortgagor, and the mortgagee and that, therefore a second suit for redemption would be barred under section 11, whether the prior suit was one for redemption as in Vedapuratti v. Vallabha Valia Raja1, or was for sale as in Ranga Iyengar v. Narayana Chariar2and Ellarayyan v. Nagaswami Ayyar3. When once it is held, as now it has been, that a second suit for redemption is maintainable so long as it is not barred under section 60 of the Transfer of Property Act, it should logically follow that a second suit for sale should likewise be maintainable so long as it is not barred by section 67 of the Transfer of Property Act. If section 11 of the Code of Civil Procedure cannot operate to curtail or abridge the rights conferred by section 60 of the Transfer of Property Act, on principle, it cannot operate to cut down the rights under section 67 of the Transfer of Property Act either and the second suit for sale must accordingly be held to be not barred as res judicata. In Raghunath Singh v. Hansraj Kunwar4, the Privy Council observed that a second suit for redemption was not barred on the ground of res judicata because in the first suit the issue was what amount had to be paid then by the mortgagor for redemption whereas in the second suit the issue was what amount had to be paid at the time of that suit for redemption. This reasoning is obviously based on the form of the decree to be passed in redemption suits, which has to declare the amount due as on the date of the decree in that suit, and provide for redemption on payment of that amount. The issue in 1896 suit was what amount was payable on the date of the decree in that suit where as the amount payable in 1924 suit was the amount payable on the date of the decree in that suit. According to the Privy Council as the ascertainment of the amount payable by the mortgagor was an essential issue in a suit for redemption and as that issue must be necessarily different in the two suits there could be no bar of res judicata. The same reasoning must apply to suits for sale and foreclosure as well, as the amount payable by the mortgagor has to be ascertained and declared in the preliminary decree which is to be passed under Rules 2 and 4 in suits for foreclosure and sale. Dealing particularly with the facts of this case the decree in the prior suit, Ex. P. 2(a) declared that Rs. 11,804-4-0 was due to the appellant on 12th December, 1939. In the present suit the plaintiff claims that a sum of Rs. 10,500 was due to her. The defendants; dispute it. Issue No. 3 in the suit runs as follows: “What if any is the correct amount due to the plaintiff?” The finding on that issue is that the amount claimed is correct. This issue could obviously not have been the subject-matter of decision in the prior suit and on the principle laid down in Raghunath Singh v. Hansraj Kunwar4it must be held that the decree, Ex. P. 2(a) cannot operate as res judicata in this suit. Mr. N. Sivaramakrishna Iyer brought to our notice the decision in Bhajanmal Topandas v. Tikamdas5as authority for the position that a second suit for sale by a mortgagee is not maintainable. P. 2(a) cannot operate as res judicata in this suit. Mr. N. Sivaramakrishna Iyer brought to our notice the decision in Bhajanmal Topandas v. Tikamdas5as authority for the position that a second suit for sale by a mortgagee is not maintainable. The facts of that case were that one Topandas executed a simple mortgage on 7th February, 1920. In 1924, a suit O.S. No. 147 of 1924 was filed to enforce this mortgage and a preliminary decree for sale was passed. An application for final decree was filed on 29th February, 1934, and was dismissed as barred by limitation. Then a second suit was filed in 1939 basing itself on the preliminary decree in O.S. No. 147 of 1924 and the question was whether such a suit was maintainable. It was held that both under English and Indian Law the right of a party is only to execute a decree and not to file a further action on it. The suit in that case was not one to enforce the mortgage dated 7th February, 1920, and it would seem that such a suit would have been barred by limitation. The question whether a second suit on the mortgage itself was maintainable did not arise for determination and it is for this reason that the decision in Raghunath Singh v. Hansraj Kunwar1 is not even referred to in the judgment. This decision, therefore, is no authority for the position contended for on behalf of the respondents. In conclusion we are of opinion that a mortgagee has a right under section 67 of the Transfer of Property Act to file a suit for sale subject only to the conditions prescribed therein and of course, subject to the law of limitation and that such a suit is not barred under section 11 of the Code of Civil Procedure by reason of a decree for sale passed on the same mortgage in a prior suit and that under section 100 of the Transfer of Property Act the same principle applies to a second suit for sale to enforce a charge. In the result the suit will be decreed as prayed for with costs, both here and in the Court below as against defendants 8 to 13 who are the legal representatives of the 1st defendant. Time for payment, three months. In the result the suit will be decreed as prayed for with costs, both here and in the Court below as against defendants 8 to 13 who are the legal representatives of the 1st defendant. Time for payment, three months. In view of the finding on issue No. 5, items 36 to 46 of plaint schedule will be excluded from the decree. K.S. ----- Appeal allowed.