VENKATEGOWDA Vs. SHIVANEGOWDA

JUDGEMENT

(1.) at the stage of admission, the respondents are notified. The 1st respondent has put in appearance through a counsel. The 2nd respondent is deleted by the order dated 15-2-1989. The records are also received.

(2.) this second appeal arises out of a suitbearing o. S. No. 241/1982 on the file of the munsiff, malavalli filed by the 1st respondent-plaintiff for redemption of the suit schedule properties. The trial court has dismissed the suit whereas the lower appellate court has reversed the judgment and decree of the trial court and has decreed the suit.

(3.) Sri G.S. Visweswara, learned counselfor the appellant (1st defendant) has advanced two contentions: (1) that the 1st respondent-plain tiff had on the earlier occasion in respect of the very suit property filed p. S. No. 76/1976 in the court of the munsiff, malavalii for a declaration of title and for possession; that at that time, the suit property had been mortgaged to the appellant-1st defendant and the relief of redemption was available to him on the date the earlier suit o. S. No.76/1976 was filed by the 1st respondent-plaintiff; that the plaintiff without obtaining the leave of the court did not seek the relief of redemption, therefore, the present suit for redemption is barred by order ii, Rule 2, C.P.C. (2) that the judgment in o. S. No.76/1976 as affirmed in r.a. No. 114/1977 operates as res judicata inasmuch as in the said suit, it was held that the plaintiff was not entitled to possession. Contention No. 1