KAMALAMMA Vs. H N REDDY

JUDGEMENT

(1.) THIS Civil Revision Petition is preferred by the defendants in O. S. No. 6011/1994 aggrieved by the dismissal of their application to dismiss the suit under Order 7 Rule 11 (b) CPC on the ground that the same is hit by Order 9, Rule (9) CPC.

(2.) IT is contended that plaintiff/respondent-1 herein had filed earlier suit in O. S. No. 572/1974 before the very Court on the same cause of action and on the same set of facts and the said suit was dismissed on 15. 3. 1977 which was came to be confirmed in Mis. No. 80/1977 and in M. F. A. No. 822/1978 by the High Court on 9. 10. 1984 ; his application is opposed by the plaintiff contending that the suit is one for redemption of mortgage is maintainable and the earlier suit was not decided on merits; that dismissal is not concluded in a decree within the meaning of Section 2 (2) CPC and thus the jurisdiction of the Court is not barred.

(3.) THE Trial Court found that the earlier suit in O. S. No. 572/1974 which was for a declaration that the transaction dated 5. 2. 1965 between the parlies culminating into a sale deed and the lease deed of 6. 2. 1965 with respect of a mortgage of the immovable properties and also for declaration that the plaintiff was entitled to return the suit schedule properties by payment of the balance amount of mortgage; it was contended before the Trial Court that there was a mortgages of the plaint schedule properties in favour of Rangasubba in the year 1963 for Rs. 20,000/- in 1964 for Rs. 10,000/- and again during the same month for Rs. 15,000/- and subsequently on 5. 2. 1965 the plaintiff executed a nominal sale deed in favour of the said Ranga Subba in respect of the suit property with a simultaneous agreement of re-conveyance of the suit properties; according to the plaintiff, in the earlier suit, as well as in the instant suit, the transaction of 1965 February amounts to a mortgage and there was no out and out sale of immovable properties in favour of the defendant in the earlier suit and consequently the plaintiff is entitled to redeem the mortgage.