NARAYANAN NAIR Vs. ITTI MATHAI

JUDGEMENT

(1.) THE plaintiffs in O. S. No. 238 of 1123 of the munsiff's Court, Thiruvilla - Members of a Nair tarwad - are the appellants in this second appeal. THE karnavan of their tarwad executed Ext. B, a usufructuary mortgage dated 4-5-1045 and the mortgagees under Ext. B executed ext. C, a sub-mortgage dated 28-12-1058. By the release deeds Ext. D dated 11-5-1061 and Ext. E dated 7-1-1080 the usufructuary mortgage created by Ext. B has ceased to exist. What the present suit seeks is the redemption of the sub-mortgage created by Ext. C and recovery of the property for and on behalf of the tarwad of the plaintiffs.

(2.) EXT. III is the decree in an earlier suit for the redemption of the sub-mortgage created by EXT. C. O. S. No. 858 of 1095 of the munsiff's Court, Thiruvalla The trial court found that the said decree does not, and the court of first appeal that it does, operate as res judicata.

(3.) THE second contention also appears to be equally unsustainable. Ext. II, the petition filed by the plaintiffs and in pursuance of which Ext. III was passed roads as follows: Ext. III refers to Ext. II and says: It is impossible to hold that this decree will not operate as res judicata.