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2001 DIGILAW 273 (KER)

Mathevan Gangadharan v. Vijayan

2001-06-05

S.MARIMUTHU

body2001
JUDGMENT S. Marimuthu, J. 1. The 4th defendant in O.S. No. 92 of 1984 on the file of the Munsiff's Court,ttingal is the appellant. Pending appeal the sole appellant died and additional appellants 2 to 7 are impleaded as his legal representatives. First respondent as plaintiff filed the above said suit for redemption and recovery of possession of plaint B Schedule property from the appellant and three other defendants. The Trial Court decreed the suit and the appellate court, Sub Court, Attingal, in A. S. No. 149 of 1985 confirmed the judgment of the Trial Court. Hence this appeal. 2. The admitted facts are briefly as follows: An extent of 27 cents of land was outstanding on a mortgage in favour of the second respondent (first defendant). There was a partition in the Jenmy's family under Ext. A1 (copy) on 6.7.1950 in which respondents 1 and 3 and the appellant are parties. In Ext. A1 the northern 20.5 cents was allotted to the first respondent and the southern 6.5 cents was allotted to the second respondent. Since the entire 27 cents was outstanding on a mortgage, there was a recital in Ext. A1 that the first respondent could redeem the mortgage of his property measuring 20.5 cents from the second respondent on payment of the mortgage money. There was yet another recital in Ext. A1 for life interest of one Narayanan Velayudhan in respect of the entire property. Narayanan Velayudhan admittedly died in the year 1980. On 21.5.1962, Ext. A2 exchange deed was entered into between the parties as per which the first respondent had to take the eastern 20.5 cents and the second respondent had to take the western 6.5 cents for the convenient enjoyment of the parties to Ext. A1 in respect of their respective plots allotted thereon. Even on the date of Ext. A2, the original mortgage in favour of the second respondent was subsisting. The second respondent settled his property of 6.5 cents lying on the western side in favour of one Gangadharan Vijayan on 14.7.1972. On 29.3.1977 the said Velayudhan, appellant and the 3rd respondent together executed a mortgage in respect of the entire 27 cents in favour of one Raman Devaki. On 24.3.1981 the appellant and the third respondent alone redeemed the mortgage from Raman Devaki and got possession. The appellant was the husband of the third respondent. On 29.3.1977 the said Velayudhan, appellant and the 3rd respondent together executed a mortgage in respect of the entire 27 cents in favour of one Raman Devaki. On 24.3.1981 the appellant and the third respondent alone redeemed the mortgage from Raman Devaki and got possession. The appellant was the husband of the third respondent. The entire property is described as A schedule and the eastern 20.5 cents is described as plaint B schedule property for which now redemption is sought for. 3. First respondent as plaintiff filed O. S. No. 144 of 1979 before the Munsiff's Court, Attingal for redemption of his northern 20.5 cents (which was allotted to him under Ext. A1). In that suit Raman Devaki and life interest holder Narayanan Velayudhan were all parties. A preliminary decree was passed and Ext. B1 dated 30.7.1980 is the judgment in that suit. Only after Ext. B2 decree the third respondent and the deceased appellant redeemed the property as pointed out above on 24.3.1981 from Raman Devaki. 4. On account of the above admitted facts, according to the learned counsel appearing for the appellant, the suit for redemption is not maintainable and it is hit by res judicata under S.11 CPC and it was also his contention that the suit is barred under O.2 R.2 CPC. On the other hand, learned counsel appearing for the respondents would contend that a second suit for redemption is maintainable, particularly when the earlier suit is not finally disposed of. In other words, there is no extinguishment of the mortgage right by a final decision and hence there is no res judicata under S.11 CPC and the suit is not barred under O.2 R.2 CPC. 5. In view of the above rival submissions of both the learned counsel, let me look into the statutory and settled law on the point. 6. O.2, R.2 CPC and S.11 CPC are as follows: "2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. S.11. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. S.11. Res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court". The Supreme Court in Kewal Singh v. Lajwanti ( AIR 1980 SC 161 ) had the occasion to examine O.2, R.2 CPC. There it has been held as follows: "A perusal of O.2 R.2 would clearly reveal that this provision applies to cases where a plaintiff omits to sue a portion of the cause of action on which the suit is based either by relinquishing the cause of action or by omitting a part of it. The provision has, therefore, no application to cases where the plaintiff bases his suit on separate and distinct causes of action and chooses to relinquish one or the other of them. In such cases, it is always open to the plaintiff to file a fresh suit on the basis of a distinct cause of action which he may have so relinquished." 7. In view of the statutory provision in O.2, R.2 and also the principle laid down by the Supreme Court stated above, I am of the view that the suit is not barred under O.2, R.2 CPC since the suit for redemption is not finally disposed of. In the same decision regarding res judicata it is held thus by the Supreme Court. "Secondly, as regards the question of constructive res judicata it has no application whatsoever in the instant case. It is well settled that one of the essential conditions of res judicata is that there must be a formal adjudication between the parties after full hearing. In other words, the matter must be finally decided between the parties....". 8. "Secondly, as regards the question of constructive res judicata it has no application whatsoever in the instant case. It is well settled that one of the essential conditions of res judicata is that there must be a formal adjudication between the parties after full hearing. In other words, the matter must be finally decided between the parties....". 8. In this context, it is also pertinent to look into S.60 of the Transfer of Property of Act. In respect of this Section and also S.11 CPC, this Court had occasion to consider the same in Edumban Chettiar v. Ramalakshmi (AIR 1965 Kerala 153). There it is held thus: "Any number of suits for redemption of the mortgage would lie within the period of limitation unless the right to redeem has been lost in the meanwhile, by act of parties or by decree of Court. A prior decree will not operate as res judicata so as to prevent the courts, under S.11 Civil Procedure Code, from trying a second redemption suit unless it involves a decision extinguishing mortgagors right to redeem. In case there is a decree extinguishing the right of redemption even if it is an erroneous decree, no doubt, a second suit shall not lie and the erroneous decision may operate as res judicata." 9. When the above principle is applied to the present case on hand, it is needless to say that the present suit is not hit by res judicata since the mortgage right was not extinguished by Ext. B1 decree. Both the courts below in the instant case on hand examined these aspects and rendered a correct finding. Therefore, I do not find any reason to disturb the concurrent findings entered by both the Courts below. Hence the appeal is only to be dismissed. Second Appeal is accordingly dismissed.