' A mortgage with possession of House No,2937 situated in Mohallah Hashtnagri Gate, Peshawar City, had been effected in the year 1969 for a sum of Rs,3,000 by one Taj Muhammad (original mortgagor), predecessor-in-interest of Mst. Razia and others, respondents in this revision, in favour of Muhammad Akhtar, petitioner (mortgagee). Mst. Razia and others, plaintiffs, filed Suit No,442/1 for the redemption of the house in dispute on 23-11-1980 and claimed to be put into possession of the house. The plaintiffs failed to appear before the Court and hence the suit was dismissed in default on 4-6-1981 under Order 9, Rule 8, C.P.C. An application (bearing No,30/6) filed by plaintiffs for restoration of the suit was also dismissed in default on 12-12-1981. However, dismissal of Application No,6/6 for the restoration of earlier Application (No,30/6) on merits on 27-7-1984 obliged the plaintiffs (respondents), Mst. Razia and others, to file an appeal before the learned District Judge, Peshawar, which prevailed with him who vide order dated 29-6-1985 accepted the appeal ex parte as defendants failed to appear before the appellate Court despite service. The case was remanded to the trial Court for recording evidence of the parties on the application for restoration (No,6/6). The trial Court, however, after receiving the record, restored the suit on 18-6- 1986 without recording any evidence so directed. When this lacuna was brought to the notice of the Court, the learned Civil Judge ordered the parties to adduce evidence but his successor-in-office on 10-2-1987 held that since the suit had already been restored, on 18-6-1986, he ordered the registration of the suit in its old number. Appeal of the defendants (petitioners) against the order of restoration of suit dated 18-6-1986 was accepted and thus the case was again remanded to the trial Court for recording evidence on the application (6/6) of restoration first and then to dispose of the application on merits. The parties were, however, directed to appear before the trial Court on 3- 4-1988. The plaintiffs, did not appear before the Civil Judge, on the date fixed, and hence the suit was once again dismissed in default on 3-4-1988. The plaintiffs, instead of applying for restoration of the suit dismissed on 3-4-1988, filed fresh Suit No,247/1 on 21-4-1988. The suit was contested by the defendants. The pleadings of the parties led to the framing of relevant issues including the one that separate fresh suit was barred being hit by Order 9, Rule 9, C.P.C. The learned trial Court vide order, dated 22-12-1992 held that under Order 9, Rule 9, C.P.C. Plaintiffs were prevented from instituting the fresh suit and left the remaining issues undecided. The plaintiffs went in appeal against the order dated 22-12-1992. The learned Additional District Judge accepted the appeal on 22-3-1988 on the ground that proviso to Order 9, Rule 9, C.P.C. Had not precluded the plaintiffs from bringing the fresh suit for redemption of mortgaged property and remanded the suit to the lower Court for decision afresh on all issues. Aggrieved of the order of the appellate Court, the defendants have filed the present revision petition.
2. Arguments of Mr. Muhammad Latif, Advocate, for the defendants (petitioners) and Mr. Abdul Sattar, Advocate, for the plaintiffs (respondents) heard and record perused carefully with their assistance.
3. Admittedly both the suits of the plaintiffs were filed within time. The argument of the learned counsel for the defendants (petitioners) was confined to the proposition that after contesting the suit, dismissed in default to some extent, the fresh suit on the same cause of action was not maintainable under Order 9, Rule 9, C.P.C. He urged that the plaintiffs could file fresh suit when their suit was dismissed in default for the first time on 4-6-1981 and that since dismissal of the suit is also a decree passed against the plaintiffs which is appealable under Order 43, C.P.C. In such circumstances no fresh suit can be filed. He insisted on the rule that nobody can be vexed twice in law.
4. This contention, in my view, is untenable. The word 'decree' as defined in section 2(2), C.P.C.
Means judicial decision wherein the Court determines rights of the parties with regard to all or any of the matters in controversy in the suit. The Court in its previous order of dismissal has not, as is evident from the record, considered subject-matter of the suit regarding which the relief was sought. Such order, in no sense, can be termed as decree. It appears from the record that plaintiffs had taken various steps to restore the suit dismissed in default and to get the orders passed by the Court on 4-6-1981 set aside but since they failed to restore the same they filed fresh suit. Now to examine the question whether second suit which was brought on 20-4-1988 was barred by the reason of the fact that similar suit was filed on 23-11-1980 on the same cause of action which was dismissed for default on 4-6-1981, I may have to refer to section 60 of the Transfer of Property Act, 1882, which reads as under:--- "60. Right of mortgagor to redeem.---At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: ' Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court.
' The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.
' Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money."
This section, in terms, confers upon a mortgagor a right to redeem the mortgaged property at any time after the principal amount has become payable and thus requires the mortgagee to deliver the possession thereof. This right of the mortgagor is, however, limited to proviso which runs, "Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court." It has been made clear that right being continuous right therefore exists unless it has been extinguished by the order of the Court or by the act of the parties. Mere dismissal for default on 4-6-1981, without going into the merits of the case, cannot be construed to be an order extinguishing the right of redemption. So long as relationship of mortgagor and mortgagee subsists, the plaintiffs cannot be precluded from bringing a fresh suit for redemption, subject, however, to fact that mortgagor files the suit within the period which can be redeemed by the mortgagor. The dismissal in default does not extinguish the right of redemption within the meaning of section 60 of Transfer of Property Act, 1882.
' In the circumstances I would affirm the judgment of the learned appellate Court and dismiss the revision petition with costs.