ALEY Vs. VAPPU KAKKARU

JUDGEMENT

(1.) This is an appeal by the plaintiff from a decree in a suit for contribution. The facts of the case may be briefly stated: The plaint property and certain other properties belonged to one Narayanan and others. They executed a simple mortgage to one Sankara Pillai in respect of them. Subsequently they mortgaged these properties to one Kesavan Namboodiri. Sankara Pillai, the 1st mortgagee obtained a decree on the mortgage in O. S. No. 982/ 1097 of the Muvattupuzha Munsiff's Court, and in execution of that decree purchased the properties. Kesavan Namboodiri was not a party to that suit. He obtained a decree in O. S. 357/1109 for the amount due to him under the subsequent mortgage. The prior mortgagee Sankara Pillai was a party to his suit. Sankara Pillai sold some of the properties purchased by him in execution of the decree to the mother of defendants 1 and 2 under Ex. P 2. The remaining properties were sold by Sankara Pillai to one Raman Pillai and by successive assignments the right of Raman Pillai in the properties devolved on the plaintiff. Ex. P 4 is the copy of the sale deed dated 25th Makaram 1121 by which the plaintiff purchased the properties. When execution was taken in O. S. 337/1109, the plaintiff paid off that decree debt and thereafter she filed O. S. 192/1951 for recovery of the plaint properties offering to pay one half of the amount paid by her to the decree holder in O. S. 337/1109, on the allegation that she had stepped into the shoes of the puisne mortgagee and had a preferential right to redeem the properties. That suit was dismissed and Ex. D 1 is the copy of the judgment of the High Court confirming the decree of the Trial Court. The present suit was instituted alleging that the properties purchased under Ex. P 2 were liable to contribute their proportionate share of the common liability due under the decree in O. S. 337/1109.

(2.) Defendants 1 and 2 contended that the properties purchased by their mother under Ex. P 2 were not liable to contribute to any part of the decree debt in O. S. 337/1109, as under the sale deed in favour of the plaintiff she alone was liable to discharge that decree, and that the suit was barred by res judicata on account of the decision in O. S. 102/1951.

(3.) Both the courts below have come to the conclusion that as there was a direction by the vendor in Ex. P 4 that the plaintiff should discharge the decree debt in O. S. 337/1109 out of the consideration for that sale, the plaintiff was not entitled to contribution from the properties purchased by the defendants' mother under Ex. P 2.