Document Fragment View

Matching Fragments

30. In the case of mortgage-decrees there is provision made for extinguishment of the security and of the right of redemption, but in the case of decrees in ejectment and other decrees there is no such provision, and Section 28 of the Limitation Act applies only to suits and not to the execution of decrees. If the owner of property obtains a decree in ejectment against a trespasser or a tenant whose tenancy has expired, can he bring another suit in ejectment on his original cause of action as owner or landlord, on the ground that his ownership has not been extinguished by the decree in the former suit or by any order passed therein subsequent to decree? If a mortgagor is to be at liberty to bring successive suits for redemption subject only to the extraordinarily long period of limitation applicable to suits for redemption, it will be difficult to discover or suggest a reason for denying such liberty to the owner of property who seeks to eject a trespasser, subject, of course, to the comparatively short period of limitation applicable thereto. There are numerous instances in which the right of action alone is extinguished or destroyed, though the right of property to which it relates has not been extinguished. Thus, if a suit is dismissed under Section 102, Civil Procedure Code, for default of plaintiff's appearance, or the plaintiff withdraws the same (Section 373, Civil Procedure Code) without obtaining permission to bring a fresh suit on the same cause of action, the right of action is extinguished and he is precluded from bringing a fresh suit on the same cause of action, though his substantive right of property may not be extinguished, and the dismissal or withdrawal may not even operate as res judicata against him in respect of his right of property. Similarly, if a plaintiff omits to sue in respect of any portion of his claim, he is precluded (Section 43, Civil Procedure Code) from suing in respect of the portion so omitted, though his right in respect of such portion may not be extinguished. I fancy that the result will be the same even if the suit so dismissed or withdrawn or portion omitted is by a mortgagor or mortgagee as the case may be. Certainly the result must a fortiori be the same if a decree has been given, and thus not only has the original cause of action gone, but the decree also operates as res judicata in respect of the right adjudged.