KANDA VELOO Vs. KUMARAN GOVINDAN

JUDGEMENT

(1.) THE Petitioner in the revision is the Appellant in the second appeal.

(2.) ONE Kandan Vava gave a usufructuary mortgage of certain properties to one Gopalan Nair and took them back on lease. The lease deed created a charge over the equity of redemption for rent. The transaction was of the year 1107. The mortgagee -lessor filed O.S. 120/11 on foot of the lease for recovery of possession as also for arrears and future rent by sale of the equity of redemption. Pending the suit, the rights of the Plaintiff over the mortgage as also as regards the lease including the rent claimed, became vested in Govindan who is the Respondent in the C.R.P. and the second appeal. There was a decree as sued for in favour of the Respondent pursuant to which he obtained delivery of possession on 7 -3 -1121.

(3.) ON 16 -3 -1121 he filed O.S. 263/1121 for redemption of the mortgage. The Respondent contended that the Plaintiff has no right to redeem because the transfer in his favour was 'benami' for the judgment -debtor. He contended further that the claim preferred by the Plaintiff on foot of the assignment in his favour when the properties were attached in execution of the decree obtained by Anr. person against Kandan Vava as belonging to the judgment -debtor in O.S. 1211/1107 was rejected and that the original suit and the appeal filed by him were both dismissed. (See Ext. I, II and IV). It was, therefore, urged that the Plaintiff is debarred by the principle of 'res judicata' from claiming that he got title pursuant to the assignment in his favour.