T. N. VALLINAYAGAM, J. ( 1 ) THIS Civil Revision Petition is preferred by the defendants in O. S. No. 6011/1994 aggrieved by the dismissal of their application to dismiss the suit under Order 7 Rule 11 (b) CPC on the ground that the same is hit by Order 9, Rule (9) CPC. ( 2 ) IT is contended that plaintiff/respondent-1 herein had filed earlier suit in O. S. No. 572/1974 before the very Court on the same cause of action and on the same set of facts and the said suit was dismissed on 15. 3. 1977 which was came to be confirmed in Mis. No. 80/1977 and in M. F. A. No. 822/1978 by the High Court on 9. 10. 1984 ; his application is opposed by the plaintiff contending that the suit is one for redemption of mortgage is maintainable and the earlier suit was not decided on merits; that dismissal is not concluded in a decree within the meaning of Section 2 (2) CPC and thus the jurisdiction of the Court is not barred. ( 3 ) THE Trial Court found that the earlier suit in O. S. No. 572/1974 which was for a declaration that the transaction dated 5. 2. 1965 between the parlies culminating into a sale deed and the lease deed of 6. 2. 1965 with respect of a mortgage of the immovable properties and also for declaration that the plaintiff was entitled to return the suit schedule properties by payment of the balance amount of mortgage; it was contended before the Trial Court that there was a mortgages of the plaint schedule properties in favour of Rangasubba in the year 1963 for Rs. 20,000/- in 1964 for Rs. 10,000/- and again during the same month for Rs. 15,000/- and subsequently on 5. 2. 1965 the plaintiff executed a nominal sale deed in favour of the said Ranga Subba in respect of the suit property with a simultaneous agreement of re-conveyance of the suit properties; according to the plaintiff, in the earlier suit, as well as in the instant suit, the transaction of 1965 February amounts to a mortgage and there was no out and out sale of immovable properties in favour of the defendant in the earlier suit and consequently the plaintiff is entitled to redeem the mortgage. ( 4 ) THE suit in O. S. No. 572/1974 carne to be dismissed for non prosecution. Application filed under Order 9 Rule 9 was dismissed, miscellaneous case and so was dismissed as also M. F. A. Therefore, it is contended by the defendant/petitioner that the present suit is barred under Order 9 Rule 9 CPC. The dictum in the case of SURAJ ratan TIRAHI AND OTHERS has been relied upon to the effect that a second suit in respect of the same cause of action, when the first suit is dismissed for default of appearance of the plaintiff is not maintainable and the test to be applied is "are the causes of action in the suits in substance and not technically identical. " The Trial court found that the cause of action in the two suits in substances are identical. ( 5 ) RELYING upon the dictum of Supreme Court in AIR 1985 SC Page 1646, the Trial Court held that l. A. No. 5 is not maintainable under Order 7 Rule 11 (b ). ( 6 ) NOW it is contended before me by Mr. G. S. Visweswara, the senior Counsel appearing for Mr. T. Seshagiri Rao for the petitioner that the Trial Court though had come to the conclusion that the cause of action in both the suits are one and the same, failed to 1406 INDIAN LAW REPORTS 2000 KARNATAKA SERIES exercise the power conferred under Order 7, Rule 11 (d) C. P. C. The prayer in the present suit and also prayer in the earlier suit are one and the same. It is further contended that the right continuous, so long as it has not been extinguished either by the parties or by the decree of the Court; the Court ought to have seen that the earlier suit is not one for bare injunction and permission in that, regard is obtained under Order 23, Rule 1 CPC. , the new suit does not suit; the dismissal of the earlier suit is not for default as defined by the trial Court and it is an order passed under Order 17, Rule 3 of c. P. C. which formulate a decree; the whole approach of the learned judge that the document dated 5. 2. , the new suit does not suit; the dismissal of the earlier suit is not for default as defined by the trial Court and it is an order passed under Order 17, Rule 3 of c. P. C. which formulate a decree; the whole approach of the learned judge that the document dated 5. 2. 1965 is a mortgage deed and the party has got every right to seek for redemption of his property within the statutory period of 30 years, is an incurrect finding; the document dated 5. 2. 1965 is a sale out and out and for any reason it cannot be construed as a mortgage deed; undoubtedly there is a separate agreement for repurchase of the property, so the transaction will not become a mortgage since the re-purchase condition is not embodied in the same document. Therefore Section 58 (c) of the transfer of property Act comes into play and which plays a major role in this matter. ( 7 ) HEARD the respective counsel. ( 8 ) THE prayer is O. S. No. No. 572/1974 is as follows:a) Declaring that the transaction of 5. 2. 1965 culminating into a sale deed and least deed dated 6. 2. 1966 constitutes a mortgage of the suit schedule properties. b) Declaring that the plaintiff is entitled to redeem the suit schedule properties by payment of the balance principle amount of Rs. 12,935/- (Rupees Twelve thousand nine hundred and thirty five only) or such sum as this Hon'ble court may direct the plaintiff to pay the defendant and directing the defendant to accept such sum in full settlement of this loan transaction of 5. 2. 1965 and redeemed the suit schedule properties in favour of the plaintiff and put the plaintiff in possession of the suit schedule properties. ( 9 ) THE prayer in O. S. No. 6011/1994 is as tollows:-"the plaintiff prays this Hon'ble Court to pass judgment and decree for redumption against the defendants-1 to 8 in respect of the suit schedule-'a' and 'b' properties as per the registered reconveyance deed dated 5. 2. ( 9 ) THE prayer in O. S. No. 6011/1994 is as tollows:-"the plaintiff prays this Hon'ble Court to pass judgment and decree for redumption against the defendants-1 to 8 in respect of the suit schedule-'a' and 'b' properties as per the registered reconveyance deed dated 5. 2. 1965 registered in the office of the sub-Registrar of Assurances, Bangalore South Taluk, registered as document No. 6730/1965 in Book-I Volume-550, pages 84 to 87 and for consequential relief of perpectual injection restraining the defendants 1 to 9 from alienating any portion of the suit schedule 'a' and 'b' properties from altering the nature of the schedule properties and to pass such other order or orders in the circumstances of the case. " ( 10 ) IN the cause of action para in O. S. No. 572/1974, this is what stated :- "the cause of action arose on 5. 2. 1965 and thereafter at bangalore wherein the suit properties are situate. " in the other suit, the cause of action reads as follows:- the causes of action for the suit arose on 5. 2. 1965 when the nominal sale deed and a simultaneous re-conveynace agreement (registered) was entered into, amounting to a transaction of mortgage and subsequently within the jurisdiction of this Hon'ble Court when the demand of the plaintiff for reconveyance (redumption) was made and denied by the said ranga Subba and then defendants 1 to 8 and when the 9th defendant made attempts to make alterations to be schedule 'b' property and when the defendants - 1 to 8 made attempts to alienate the schedule 'a' property in favour of others. " in both the case, the cause of action is said to be 5. 2. 1965, the date of alleged mortgage. ( 11 ) HEARD the respective counsel. ( 12 ) THE main question to be decided in this C. R. P. is whether it is a mortgage deed or an un-conditional sale deed? ( 13 ) REALLY speaking, the cause of action for the present suit is for the dismissal of'o. S. No. 572/1974 on 15. 3. 1977. While in the earlier suit the prayer is that the transaction is sale deed and lease deed constitutes a mortgage. While the later prayer which is so made on the basis of a re-conveyance deed dated 5. 2. 3. 1977. While in the earlier suit the prayer is that the transaction is sale deed and lease deed constitutes a mortgage. While the later prayer which is so made on the basis of a re-conveyance deed dated 5. 2. 1965, so as to bring it into the provisions of Section 58 (c) of the Transfer of property act. Therefore, the prayers cannot be construed as one and the same. ( 14 ) RELIANCE was made in the case of T. ARIVANDANDAM vs T. V. SATYAPAL AND ANOTHER to the following effect:-"if on a meaningful - not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the trial court should exercise its power under Order 7, Rule 11, C. P. C. taking care to see that the ground mentioned therein is fulfilled. The Trial Courts should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. If the Trial Court is satisfied that the litigation was inspired by vexatious motives and altogether groundless it should take deterrent action under Section 35-A. The Counsel, as an officer of justice, can also contribute to the cause of justice by screening wholly fraudulent and frivolous litigation and by not collaborating in shady actions. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be guiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the co-operation of the Bar will be readily forthcoming to the Bench for spending judicial time on worth-while disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex-parte orders tempts gamblers in litigation in to easy courts. A Judge who succumbs to ex parte pressure in un merited cases helps devalue the judicial process. Another moral of this unrighteous chain litigation is the gullible grant of ex-parte orders tempts gamblers in litigation in to easy courts. A Judge who succumbs to ex parte pressure in un merited cases helps devalue the judicial process. "the dictum in THOTA CHINA SUBBA RAO AND OTHERS vs mattapalli RAJU AND OTHERS is relied upon to the following effect:- the right of redemption is an incident of an subsisting mortgage and it subsists so long as the mortgage itself subsists. The right of redemption can be extinguished as provided in Section 60 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. 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 Section 11, Civil P. C. A suit for redemption was dropped as the parties had settled their disputes. The compromise was evidenced by two documents the first of which, executed by the mortgagor, was an agreement in favour of the mortgagee to the effect that as the mortgage debt could not be fully satisfied from the properties mortgaged and as the mortgagee had agreed to pay Rs. 100/- the mortgagor had agreed to execute in favour of the mortgagee a sale deed in respect of the said properties within three months from the date of execution of the document. The second document executed by the mortgage in favour of the mortgagor's wife stated that since the wife had caused an agreement to be executed by her husband to sell the properties to the mortgagee the mortgagee agreed to execute in her favour a gift deed of certain properties. It was contended that the right of redemption was extinguished by the act of the parties in arriving at the compromise evidence by the two documents. : held that the document passed in favour of the mortgagor's wife could be described as a reward promised to her for bringing about the willingness of her husband to agree to convey the mortgaged properties to the mortgagee. : held that the document passed in favour of the mortgagor's wife could be described as a reward promised to her for bringing about the willingness of her husband to agree to convey the mortgaged properties to the mortgagee. That could in no event , be considered as extinguishing the equity of redemption. The mortgagor was not even a party to the document. The second document was only an agreement to convey the properties after three months, and if at all the question of extinction of the equity of redemption could arise on the conveyance being executed but not before. In the absence of such evidence, it could not be held that there was an enforceable compromise, much less a compromise under which the right of redemption of the mortgagor was extinguished. Where during the pendency of a suit for redemption, the mortgagor executed an agreement whereby he agreed to execute a sale deed of the mortgaged property in favour of the mortgagee within a certain time and the suit was dropped but no sale-deed was executed and the mortgagee as such was never in actual or constructive possession of the mortgaged property and the mortgagor having instituted a second suit for redemption it was contended that the compromise having been partly performed the same should be enforced under the section and therefore the mortgagor was not entitled to claim redemption although no sale-deed in fact had been executed; held that as the mortgagee was never put in possession or allowed to continue in possession, actual or constructive, the section had no application and, therefore, the second suit for redemption was not barred. The right of redemption is an incident of a subsisting mortgage and it subsits so long as the mortgage itself subsists. As held by the Privy Council in Raghunath Singh's case, 61 I. A. 362: (AIR (21) 1934 P. C. 205) the right of redemption can be extinguished as provided in Section 60, T. P. 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. 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 Civil P. C. They therefore held that the right to redeem was not extinguished by the procedural provisions contained in the Civil Procedure Code. It was next argued on behalf of the respondents that although the right to redeem may not be extinguished the remedy was barred. In support of that contention, the learned Counsel relied on the words of Order 23 Rule 1 Civil P. C. In our opinion,. the high Court did not properly appreciate the effect of the termination of the former suit of 1929. When that suit reached hearing on 9th November, 1932, the Subordinate Judge wrote a Judgment in which, after reciting that the suit in forma pauperis to redeem the three mortgages was filed and four issues were raised, he stated as follows: "the plaintiff has been examined and a number of documents have been marked and suit stands posted to this day for arguments. But today plaintiff's vakil reports that he got intimation not to proceed with the case and filed the letter which he got from his client. This is not a case of withdrawal of a suit but an abandonment of it. Suit is dismissed with costs. Plaintiff shall pay the Court fees to Government. " The letter from the mortgagor to the vakil is not on the record, but the terms thereof are not material as they will contain only the instructions of a lay client to his pleader. The record shows that the Court was informed that the plaintiff was not proceeding with the case. The court interpreted it as a case not of withdrawal but of abandonment and "dismissed the suit with costs. " The circumstances under which that litigation needed show that the case did not fall under the provisions of Order 23, Rule 1 at all. There was no question of a forma! defect, or withdrawal of a suit, or abandonment of a part of the claim. " The circumstances under which that litigation needed show that the case did not fall under the provisions of Order 23, Rule 1 at all. There was no question of a forma! defect, or withdrawal of a suit, or abandonment of a part of the claim. Order 23, Rule 1 doesnot provide for a Court's order dismissing the suit. Order 9, rule 8 Civil P. C. is more properly applicable to the facts. The question then is whether a fresh suit for redemption is barred under the provisions of Order 9, Rule 9 Civil P. C. , The material part of that rule runs as follows:- "order o, Rule 9 (1) where as a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. " it will be noticed that the words used in the Rule are "of the same cause of action". The question therefore is whether the first suit, which was dismissed under Order 9 Rule 8, was based on the same cause of action as the suit from which the present appeal arises. As pointed out by the Judicial Committee of the privy Council in Raghunath Singh's case, 61 LA. 362: (AIR (21) 1934 P. C. 205) the issues in the two suits for redemption are quite different. The questions are: (1) whether the plaintiff (mortgagor) had the right to redeem when he filed the second suit, and (ii) what amount he was now liable to pay to redeem? the Board held in that case that the trial of these issues was not barred under Section 11, Civil P. C, It follows the before 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. The High Court decided both the appeals against the mortgagor on the footing that the mortgagor was debarred from claiming redemption, because of the way in which his suit filed in 1929 had ended. The High Court decided both the appeals against the mortgagor on the footing that the mortgagor was debarred from claiming redemption, because of the way in which his suit filed in 1929 had ended. They did not express any opinion on the two alternative contentions urged before us on behalf of the respondents. The first contention was that the right of redemption was extinguished by the act of the parties in arriving at the compromise evidenced by the two documents of 7th November 1932. It was contended that this position was covered by the proviso to Section 60 T. P. Act. We are unable to accept this argument because, in our opinion, on a true construction of the two documents, the right of redemption of the mortgagor was not extinguished thereby. The document passed in favour of the wife of the mortgagor can be described as a reward promised to her for bringing about the willingness of her husband to agree to reconvey the mortgaged lands to the mortgagees. That can in no event be considered as extinguishing the equity of redemption. The mortgagor was not even party to that document. The second document executed by the mortgagor is an agreement to convey the lands after three months. There is however no document or evidence to show that the mortgagees agreed to accept these lands in full satisfaction of their claims or prossised to pay the sum of Rs. 100, mentioned therein. This was only in agreement to convey the lands after three months, and, if at all the question of extinction of the equity of redemption could arise on the conveyance being executed but not before. The evidence on record shows that soon after the dismissal of the mortgagor's 1929 suit, the mortgagees repudiated the agreement and thereafter the parties adopted from time to tine such attitude in respect of the said agreement as it suited them for the moment. The Trial Judge has held that the two documents were executed but there was no bona fide compromise at all ln the absence of proper evidence we are unable to hold that there was an enforceable compromise, much less a compromise under which the right of redemption of the mortgagor was exinguished. The Trial Judge has held that the two documents were executed but there was no bona fide compromise at all ln the absence of proper evidence we are unable to hold that there was an enforceable compromise, much less a compromise under which the right of redemption of the mortgagor was exinguished. " the dictum in KALAIAH @ KALEGOWDA vs LINGAMMA on the scope of res judicata in a suit for redemption of mortgage, the Single judge of this Court has held as follows:- "section 60 incorporates a rule of justice, equity and good conscience and gives statutory recognition to the right of redemption, which cannot be fettered by any condition which impedes or prevents redemption. If it doss so, such a condition must be declared void as a clog on redemption. The proviso however provides for the exceptions to the rule and therefore before a mortgagee can contend that the night to redeem the mortgage has been extinguished he must establish that it has been extinguished by the act of the parties or by decree of a court. . . Unless the order of the Court in clear words extinguishes the right of redemption. It cannot be held that the right of. redemption stands extinguished. The more fact that a preliminary decree had been passed earlier and in terms thereof payment was not made, is no justification for the contention that another suit for redemption of the mortgage cannot be filed. Admittedly in the earlier preliminary decree there is no order extinguishing the right of redemption by debarring the plaintiffs from right to redeem the mortgaged property. Obviously therefore, the right to redeem the mortgage was not extinguished and the plaintiffs were therefore entitled to file another suit for redemption of the mortgage. In the absence of a clear indication in the decree passed in an earlier suit for redemption debarring the mortgagors from all right to redeem the mortgaged property, the right to redeem the mortgage subsists and a second suit to redeem the mortgage is maintainable. It is neither barred by Section 47 C. P. C. nor is it barred by the principle of res judicata. It is neither barred by Section 47 C. P. C. nor is it barred by the principle of res judicata. " in that suit, the decision of RAGHUNATH SINGH vs HANSRAJ kunwar5 was relied upon :-"it was held that if a second suit tor redemption was properly maintainable, then the present suit was a redemption suit and not an application to enforce the old decree. The second point was also rejected by their Lordships holding that the issues decided in the former suit were (i) whether the mortgagors were then entitled to redeem; and (ii) the amount then to be paid it redemption then took place. The issue in the second suit were: 61 Indian Appeals 362 (i) Whether the right to redeem now exists and (ii) the amount now to be paid if redemption now takes place. Their Lordships therefore found no ground for saying that the old decree operated by way of res judicata so as to prevent the Courts from trying the present suit. " ( 15 ) THEREFORE, the mortgage remains so long as it is not redeemed and the suit for redemption is always maintainable in law notwithstanding the dismissal of the earlier suit. The principles evolved above is certainly to the points in issue and the Trial Court though for different reasons has chosen to reject the I. A. No. 5 filed by the defendants 1, 2, 3 and 6 to 8 who are petitioners before this court. In the light of the discussion made above, such decision of the Trial Court is not sustainable. ( 16 ) A man cannot be deprived of his right to redemption of his property, if really it is a mortgage. The basic principles is that once a mortgagee is always a mortgagee, he shall never be permitted to occupy the property and refuse to redeem the property by mortgagor who under difficult circumstances had given a property under mortgage to mortgagee. No mortgagee can become and claim the property to the determent of the mortgagor so long as the right of mortgagor is not extinguished. ( 17 ) IN this case, the Chief remedy sought for by the petitioners is that Order 7, Rule 11 (d) which is not sustainable. It is obvious that the mortgagee/petitioner wants to make wrongful gain and deprive the mortgagor of this property by some other means of law. ( 17 ) IN this case, the Chief remedy sought for by the petitioners is that Order 7, Rule 11 (d) which is not sustainable. It is obvious that the mortgagee/petitioner wants to make wrongful gain and deprive the mortgagor of this property by some other means of law. ( 18 ) I make it clear that I am not deciding the question as to whether Section 58 (c) of T. P. Act applies or not as this Civil Revision petition filed against the order on I. A. No:v, which is an interim order. It is open to the Trial Court to come to the independent conclusion on the question raised by the parties in the present suit. ( 19 ) IN this view, the Civil Revision Petition is dismissed. In the circumstances no order as to cost. --- *** ---