R.C. Mitter, J.@mdashThis appeal is on behalf of the Plaintiff whose suit has been dismissed on the ground that it is not maintainable. The suit was a suit to recover arrears of rent at the rate of Rs. 55 per year with damages for the years 1332 to 1335. To understand the controversy between the parties, the following facts are necessary. On the 12th Baisak, 1334, the Defendants executed a mortgage in favour of the Plaintiff. It is a mortgage by way of conditional sale. On the same date the Defendants--that is to say, the mortgagors--took a lease of the mortgaged premises from the mortgagee for a term of five years. In the mortgage-deed itself the option to redeem was placed at the end of five years. In the mortgage-deed, however, there was no express stipulation for the payment of interest. The term of this lease expired according to its tenor in the month of Chaitra, 1328. In the year 1925, however, the Plaintiff instituted a suit for rent on the basis of this lease, (Exhibit 3) for the years 1323 to 1331, that is to say, for a period beyond the term of five years mentioned in the lease. A consent decree was passed. The Plaintiff has instituted the present suit, as I have said, for recovery of rent on the basis of Exhibit 3 for the period 1332 to 1335. The mortgage has not been redeemed yet. Both the Courts below have held that the mortgage-deed, Exhibit I, and this lease, Exhibit 3, must be read together. Following the decision of the Judicial Committee in the case of Panaganti Rama-Raynigal v. Maharajah of Venkata Giri L.R. 54 IndAp 68 : S.C. 31 C.W.N. 670 (1926), the learned Subordinate Judge has held that the lease, Exhibit 3, is merely a machinery for the purpose of realising interest; and relying upon the same case as also the decision in the case of Mahomed Yakub Miah Mazumdar v. Namarali ILR 55 Cal. 104 (1927), the learned Subordinate Judge has held that the suit is not maintainable. I do not think that the judgment of the learned Subordinate Judge or of the Munsif can in any view of the matter be supported and there is no justification for holding that the suit is not maintainable.
2. In Panaganti Rama-Raynigal v. Maharajah of Venkata Giri L.R. 54 IndAp 68 : S.C. 31 C.W.N. 670 (1926), the mortgage was executed and on the same date the mortgagor obtained a lease of the mortgaged properties from the mortgagee. The mortgage in that suit was not an usufructuary mortgage but an anomalous mortgage. A decree for rent had already been obtained by the mortgagee on the basis of the lease. The purchaser of the equity of redemption wanted to redeem the mortgage by paying only the money due on the mortgage without making any offer to pay the mortgagee the money due to him on account of the rent-decree. The question as to the maintainability of the suit to recover the rent on the basis of the lease was not before their Lordships of the Judicial Committee and their Lordships of the Judicial Committee had only to consider the question as to whether the mortgagor or the purchaser of the equity of redemption could redeem the mortgage by paying the principal sum secured by the mortgage without offering to pay or paying the money due on the basis of the lease. Lord Sinha pointed out that inasmuch as the mortgage was not a usufructuary mortgage, pure and simple, but an anomalous mortgage, sec. 62 of the Transfer of Property Act did not apply but that the case came within the purview of sec. 61 of the Act. His Lordship further held that sec. 61 by necessary implication enacts that if there are two charges on the same property in favour of the same creditor by the same debtor, the two charges must be redeemed together, and that the debtor has no option to redeem one and leave the other outstanding. For the purpose of showing that the claim for rent was really a charge on the property he used the expression that the lease and the mortgage must be regarded as parts of the same transaction and that the former was merely a machinery for realising interest. In Mahomed Yakub Miah Majumdar v. Namarali ILR 55 Cal. 104 (1927) the question as to the maintainability of what may be called a rent-suit was not in question. A decree had in fact been obtained but it was sought to be executed by selling the mortgaged properties. This Court pointed out that the claim in the rent suit was really a claim arising out of the mortgage and therefore the provisions of Or. 34, r. 14 were a bar to the execution in that form. These cases, therefore, do not support the conclusion arrived at by the learned Subordinate Judge that the present suit is not maintainable. If the present claim is a claim arising out of the mortgage, that question will arise at a later stage--either when the decree obtained by the Plaintiff is put in execution against the mortgaged properties or when the Plaintiff institutes a suit to recover the principal or the mortgage-money. At that stage a question may arise as to whether that suit would be maintainable. But so far as the present suit is concerned, it is a suit on the lease. Even if the claim is regarded as a claim for interest, that claim will be a valid claim on the simple ground that the mortgage money has not been paid. If the two transactions are really independent transactions, the suit arising out of the relationship of landlord and tenant by reason of holding over will be maintainable. In any view of the matter without deciding finally as to whether this is really a claim arising out of the mortgage, I hold that the suit is maintainable.
3. The result is that the judgments and decrees of the Courts below are set aside and the case is remanded to the Court of First Instance to be disposed of in accordance with law. Costs will abide the result.
