MATHEVAN GANGADHARAN Vs. VIJAYAN

JUDGEMENT

(1.) THE 4th defendant in O. S. No. 92 of 1984 on the file of the Munsiff's Court, Attingal 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. 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.) 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.