J. M. PANCHAL, J. ( 1 ) THIS Second Appeal under S. 100 of the Code of Civil procedure, 1908, has arisen from the suit brought by respondents for redemption of property which was mortgaged to the deceased appellant. ( 2 ) THE suit property is a building situated in Jamnagar City and is described in detail in list "a" appended to the plaint. The suit property originally belonged to deceased Sugrabai. She was owner and in possession of the suit property since long. The suit property was mortgaged by deceased Sugrabai for Rs. 2,000. 00 to the deceased appellant by executing an unregistered deed dated April 21, 1965. The period of mortgage was stipulated to be of 5 years in the said deed. On the date of execution of the unregistered mortgage deed, possession of the property was handed over to the deceased appellant. It may be stated that during the pendency of the Second Appeal, the original appellant, i. e. , Vora Aminabai Ibrahim expired on May 10, 1995, and her heirs and legal representatives have been brought on the record of the case by allowing Civil Application No. 1531 of 1995. Deceased sugrabai had instituted Regular Civil Suit No. 307 of 1972 in the Court of learned civil Judge (J. D.), Jamnagar for redemption of mortgage. During the pendency of the said suit Sugrabai expired on January 19, 1974. As her heirs and legal representatives were not brought on record of Regular Civil Suit No. 307 of 1972, the suit was disposed of as having abated. Thereafter, the present respondents as heirs and legal representatives of deceased Sugrabai instituted Regular Civil Suit no. 488 of 1976 in the Court of learned Civil Judge (J. D.), Jamnagar, for redemption of mortgage. It may be stated that this suit was instituted by the respondents on August 27, 1975. ( 3 ) THE suit was contested by the deceased appellant. In view of the pleadings of the parties, the Court had framed necessary issues for determination. The parties had led oral as well documentary evidence in support of their respective claims. On appreciation of the evidence, suit for redemption of mortgaged property was decreed by the trial Court and a preliminary decree was ordered to be drawn in terms of the judgment. The parties had led oral as well documentary evidence in support of their respective claims. On appreciation of the evidence, suit for redemption of mortgaged property was decreed by the trial Court and a preliminary decree was ordered to be drawn in terms of the judgment. ( 4 ) BEING aggrieved by the preliminary decree for redemption of mortgage, deceased appellant preferred Regular Civil Appeal No. 109 of 1981 in the District court, Jamnagar. The appellate Court partly allowed the appeal, but preliminary decree for redemption of mortgage which was passed by the trial Court was confirmed. Thereupon the deceased appellant preferred Second Appeal No. 193 of 1982 in the High Court. The High Court was of the view that suit for redemption of mortgage based on unregistered deed of mortgage was not maintainable. However, the High Court relied on decision of Division Bench rendered in the case of Kanbi ladha Ukeda v. Joshi Jestaram Gangaram , (1981) XXII GLR 801 and held that as the deceased appellant admittedly had entered into the possession of lands as a mortgagee without any registered mortgage deed, he acquired limited title of a mortgagee and a suit for redemption against deceased appellant was maintainable at the end of 12 years. The High Court found that suit for redemption was not filed at the end of 12 years. The High Court, therefore, concluded that suit for redemption of motgage was premature. In view of these conclusions, the High Court by judgment and order dated February 17, 1983, set aside preliminary decree for redemption of mortgaged property passed by trial Court as confirmed by the First Appellate Court reserving liberty to the respondents to file suit on completion of period of 12 years. ( 5 ) PURSUANT to the liberty which was reserved to institute a fresh suit for redemption, the respondents instituted Regular Civil Suit No 746 of 1983 in the Court of learned Joint Civil Judge (J. D.), Jamnagar, for redemption of mortgage. The deceased appellant contested the suit by filing written statement at Exh. 10. It was inter alia pleaded by the deceased appellant that in view of the judgment of the High court, the suit was not maintainable and liable to be dismissed. Plea regarding nonjoinder of necessary parties was also raised in the written statement. The deceased appellant contested the suit by filing written statement at Exh. 10. It was inter alia pleaded by the deceased appellant that in view of the judgment of the High court, the suit was not maintainable and liable to be dismissed. Plea regarding nonjoinder of necessary parties was also raised in the written statement. It was also averred in the written statement that suit was barred by time prescribed by law. Having regard to the pleadings of the parties, the trial Court framed 8 issues for determination. To prove their case, the plaintiffs examined Vora Taherali mohamedali at Exh. 27, whereas the deceased appellant examined her husband at exh. 41. On appreciation of evidence led by the parties, the trial Court held that the respondents were entitled to redeem the property which was mortgaged by deceased sugrabai to deceased appellant. The trial Court negatived the plea raised by the deceased appellant that suit was liable to be defeated for non-joinder of necessary parties. The trial Court did not uphold the objection raised by the deceased appellant that suit was barred by time prescribed by law. It was also deduced by the trial Court that suit was not barred by principles of res judicata nor barred by principles governing delay, latches, etc. The trial Court further held that the deceased appellant failed to prove that the deceased appellant had incurred expenditure of Rs. 1,000/ - in respect of the suit property as averred in paragraphs 20 and 21 of the written statement. In view of these conclusions, the trial Court decreed the suit by judgment and order dated August 14, 1986. By the said decree, the respondents were directed to pay Rs. 2,000. 00 being mortgage amount to the deceased appellant or deposit the same in the Court on or before September 10, 1986 and the deceased appellant was directed to hand over vacant possession of the suit property with tenant to the respondents. A preliminary decree in terms of Order XXXIV Rule 7 (1) (b) of C. P. C. was also ordered to be drawn. While passing preliminary decree for redemption of mortgage, it was clarified that on payment of Rs. 2,000. 00, the respondents would be entitled to apply for final decree. A preliminary decree in terms of Order XXXIV Rule 7 (1) (b) of C. P. C. was also ordered to be drawn. While passing preliminary decree for redemption of mortgage, it was clarified that on payment of Rs. 2,000. 00, the respondents would be entitled to apply for final decree. ( 6 ) FEELING aggrieved by the preliminary decree for redemption of mortgage which was passed by trial Court, the deceased appellant preferred Regular Civil appeal No. 118 of 1986 in the District Court at Jamnagar. The learned Assistant judge, Jamnagar, who heard the appeal dismissed the same by judgment and order dated June 13, 1992 which has given rise to the present appeal. ( 7 ) AT the time of admission of Second Appeal, following substantial questions of law have been formulated for determination : 1. Is the document at Exh. 28 an agreement to mortgage or a mortagage by itself ? 2. When the first suit has been disposed of as abated and the second suit was withdrawn with leave to file a fresh suit, is the third suit competent ? ( 8 ) ( 9 ) ( 10 ) ( 11 ) SO far as second substantial question of law is concerned it would be useful to consider what is redemption and what is scope of a suit for that purpose. "redemption" presupposes existence of a "mortgage". "mortgage" as defined in the transfer of Property Act, is the transfer of an interest in immovable property for the purpose of securing the payment of a loan. A mortgage is created by act of parties. In usufructuary mortgage, the transfer is made of the right of the possession and enjoyment of the usufruct. The rights of a usufructuary mortgage form part of the bundle of rights which constitute ownership, the remainder still remains with the mortgagor and can be transferred by him. On the execution of a mortgage two distinct rights are carved out, namely, (i) the mortgagees right; and (ii) the mortgagors right. The mortgagees right is the right of security for the repayment of his loan. On the execution of a mortgage two distinct rights are carved out, namely, (i) the mortgagees right; and (ii) the mortgagors right. The mortgagees right is the right of security for the repayment of his loan. The mortgagors right is as indicated in S. 60 of the Transfer of property Act, i. e. , after the principal money has become due, the mortgagor has a right to pay the mortgage money and on such payment he has a right to require the mortgagee, among others, to deliver possession. This right cannot be extinguished except by the act of parties or by a decree of a Court. This right is called the right to redeem and a suit to enforce it is called a suit for redemption. Thus, the scope of a suit for redemption is primarily to enforce the right to make payment of the mortgage money. A claim to redeem a mortgage actually does not attach to the land, although the decree passed in that suit may ultimately affect possession which is also an interest in land. An owner has a bundle of interests in property. By executing a mortgage he transfers only some interest to the mortgagee and that also by way of security. That interest is confined to realisation of mortgage debt, which, in the event of non-payment, may be realised out of the said security. What remains with the mortgagor after execution of the mortgage, is the ownership of the property, minus the interest transferred, and the right to repay the mortgage money and to get the burden of security discharged. That right has been created in the mortgagor and not in the property. Thus, when a mortgagor enforces his right to redeem, he does not enforce a right in land. Having noticed relevant principle it would be appropriate to take into account the admitted facts of the case. The second substantial question of law proceeds on the footing that second suit for redemption of mortgage was withdrawn by the respondents. However, the learned Counsel for the appellant has failed to point out that Regular Civil Suit No. 488 of 1976 which was instituted by the respondents was withdrawn by the respondents at any point of time. The second substantial question of law proceeds on the footing that second suit for redemption of mortgage was withdrawn by the respondents. However, the learned Counsel for the appellant has failed to point out that Regular Civil Suit No. 488 of 1976 which was instituted by the respondents was withdrawn by the respondents at any point of time. The record on the contrary shows unerringly that the said suit was decreed by the trial Court and a preliminary decree for redemption of mortgage was ordered to be drawn in favour of the respondents. The record also clinchingly proves that the said decree was challenged by the deceased appellant before the District Court, jamnagar, by way of filing Regular Civil Appeal No. 109 of 1981 which was also dismissed, and, therefore, the deceased appellant had carried the matter to the High court by way of filing Second Appeal No. 193 of 1982. The judgment rendered by the High Court in Second Appeal No. 193 of 1982 is on the record of the case at exh. 32. The said judgment also does not indicate that Regular Civil Suit No. 488 of 1976 instituted by the respondents in the Court of learned Civil Judge (J. D.), jamnagar, for redemption of mortgage was withdrawn at all. As second suit was not withdrawn and as suit for redemption of mortgage is filed pursuant to liberty reserved by High Court while disposing of Second Appeal No. 193 of 1982, it cannot be said that the last suit in which decree is passed in favour of the respondents is not competent. In fact while formulating second substantial question of law, factual error is commited. However, even if it is assumed for the sake of argument that second suit for redemption of mortgage was withdrawn, effect of withdrawal of said suit on right of the respondents to file suit for redemption will have to be considered. It is not (sic.) in dispute that suit filed by deceased Sugrabai was disposed of as having abated. However, there is no manner of doubt that successive suits for redemption of mortgage can be filed till right of redemption is not extinguished. It is not (sic.) in dispute that suit filed by deceased Sugrabai was disposed of as having abated. However, there is no manner of doubt that successive suits for redemption of mortgage can be filed till right of redemption is not extinguished. Having regard to provisions of S. 60 of the Transfer of Properties Act and Order xxiii Rule 1 and 2 of the Code of Civil Procedure, it will have to be held that dismissal of earlier suit for redemption whether as abated or as withdrawn or in default would not debar the mortgagor from filing a suit for redemption and that such second suit for redemption to redeem the same mortgage can be brought so long as the mortgage subsists and the right of redemption is not extinguished by afflux of time or by a decree of Court passed in the prescribed form. This is because the right of redemption is an incident of a subsisting mortgage and is inseparable from it so that the right is co-extensive with the mortgage itself. It subsists so long as mortgage itself subsists until it is appropriately and effectively extinguished and the extinguishment of the right of redemption can only happen either by the act of the parties concerned or by a proper decree of the competent Court. The right of redemption can be extinguished as provided in S. 60 of Transfer of Properties 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. The Full Bench of bombay High Court has also in an earlier case reported in AIR 1948 Bombay 226 (Rajaram Vithal v. Ramchandra Pandu) taken a similar view. In that case, the first suit for redemption was dismissed as abated on account of the death of the mortgagor. The second suit was brought by the heirs of the mortgagor. An objection was raised that the dismissal of the earlier suit which had been dismissed as abated operated as a bar. Negativing the said plea, the Full Bench has held as under :" (4) 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. Negativing the said plea, the Full Bench has held as under :" (4) 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. Section 60 provides that a mortgagor has the right to redeem the mortgaged property after the principal money has become due, and the mortgagor either pays or tenders the amount due on the mortgage; and the proviso to that section states that this right continues so long as it has not been extinguished either by the act of the parties or by the decree of a Court. Before the Act was amended the expression was "order of a Court" instead of "decree of a Court". Therefore, S. 60 confers the right to redeem upon the mortgagor, and also provides that the right is to continue until one or the other of the two eventualities mentioned in the section takes place : one, the act of the parties and the other, an order or a decree of a Court which extinguishes that right. Now, it is perfectly clear that when the suit abated, there was no express order of the Court extinguishing the right of redemption. Can it be said that the mortgagor could not enforce that right, because the second suit was barred under Order 22, Rule 9 ? If the Legislature in a piece of special legislation confers a particular right upon a party, it must intend that that right should be an enforceable right. Therefore, in our opinion, the general provisions of the Civil procedure Code as contained in Order 22, Rule 9, are to that extent overridden by the specific provisions of S. 60, T. P. 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. 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. xxx xxx xxx (6) Sir Amberson Marten, C. J. and Crump, J. were considering the dismissal of a suit for default, and the consequence following upon it under Order 9, Rule 9 in 52 Bom. 111. It will be noticed that the consequence is the same as on an abatement of the suit, and that Bench held that the general terms of Order 9, Rule 9 do not override the specific directions of S. 60, T. P. Act, 1882. If the general terms of Order 9, Rule 9 cannot override the specific directions of S. 60, equally so the general terms Order 22, Rule 9 cannot override the specific directions of S. 60, T. P. Act. We see no difference in principle between the decision in 52 Bom. 111 and the case we are considering now; and we are not satisfied by Mr. Shahs argument that that case was wrongly decided. xxx xxx xxx (8) In 44 Bom. 939 Sir Norman Macleod and Heaton J. had to consider the consequence of a redemption suit being dismissed under the provisions of order 23, Rule 1, and the subsequent suit filed for redemption; and Sir Norman Macleod says (p. 941) : so long as it had not been decided that there was no mortgage at all then the relationship of mortgagor and mortgagee existed. The law allows a particular period to the mortgagor within which he can redeem the mortgage. The mere fact that he files a suit to redeem and then either abandons or withdraws it will not deprive him of his right to redeem. It is only when there has been a decision that there was no mortgage at all that it necessarily follows that the right to redeem falls to the ground. our attention has been drawn to a recent decision of the Madras High Court, ILR (1945) Mad. 803, wherein a Division Bench of that Court Patanjali Sastri J. seems to have taken a view contrary to the view taken by this Court in the case I have just referred to. That Bench held that S. 60, T. P. Act, does not override the provisions of Order 33, rule 1, sub-rule (3), Civil Procedure Code. 803, wherein a Division Bench of that Court Patanjali Sastri J. seems to have taken a view contrary to the view taken by this Court in the case I have just referred to. That Bench held that S. 60, T. P. Act, does not override the provisions of Order 33, rule 1, sub-rule (3), Civil Procedure Code. This view seems to be contrary to the current of authority consistently followed by this Court. xxx xxx xxx (11) Therefore, it is clear from this decision that the right of redemption cannot be taken away from the mortgagor, except in the manner and to the extent provided by Sec. 60, T. P. Act. We are of the opinion that the abatement of the suit is not a decree of the court, which extinguishes the right of redemption. The procedural effect of Order 22, rule 9, cannot override the express provisions of S. 60. "thus, there is no manner of doubt that the right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose. No case contrary to law could be cited on behalf of the appellants. 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. If the mortgagee fails to establish that the old decree extinguished the right to redeem, there is no ground for saying that the old decree operates as res judicata and the Courts are prevented from trying the second suit under S. 11 of the Code of Civil Procedure. Even provisions like Order 9 Rule 9 or Order 23, rule 1 would not debar the mortgagor from filing a second suit for redemption 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 suit, until the right of redemption is extinguished or a suit for redemption is time-barred, is a different one. 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 rights. 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 rights. The abatement of the first suit filed by deceased Sugrabai was not a decree of the Court extinguishing the right of redemption and as such, abatement of said suit would not operate as a bar in the second suit for the same relief. At the time of filing the suit in question for redemption, the mortgage was subsisting and the respondents right to redeem the property had not been extinguished and so the abatement of the earlier suit filed by deceased Sugrabai would not operate as a bar. In view of this settled legal position, substantial question No. 2 is answered in the affirmative and against the appellant. (Rest of the Judgment is not material for the Reports.) .