EDUMBAN CHETTIAR CHOCKALINGOM CHETTIAR Vs. RAMALAKSHMI PICHAMMA

JUDGEMENT

(1.) This second appeal arises in a suit for the redemption of a mortgage. The property belonged originally to one Kadakkarayandi who gave the mortgage In the year 1078 M. E. to one Arumukhom, the right under which is now vested in the defendant appellant. The equity of redemption of the property became vested by transfer and later by inheritance, in the plaintiff respondent. She filed O. S. 1468 of 1102 for redemption of the mortgage and obtained a decree, but did not execute the decree and recover possession. Afterwards she assigned the equity of redemption to one Panicker, who sued the mortgagee in O. S. 944 of my for redemption, and the plaintiff in the alternative for the refund of the consideration he paid for the assignment. The prayer for redemption of the mortgage was held to be barred by res judicata by reason of the decree in O. S. 1468 of 1102 and was dismissed, and the prayer for refund of the consideration was decreed against the plaintiff. Afterwards, taking a reconveyance from Panicker, the plaintiff instituted the suit out of which this second appeal arises, for the redemption of the mortgage. Redemption has been decreed by the two courts below, on the footing that the suit is not barred by the decrees in the earlier suit.

(2.) In my view, the courts below wore wrong in thinking that the judgment Ex. D.3 in O. S. 944 of 1119 by which the prayer for redemption of the mortgage was dismissed is not a bar to the present suit. The dismissal may have been on a ground, which in view of later pronouncements, must be considered to be erroneous, but even an erroneous decision operates as res judicata. By Ex. D.3, the court had held that the plaintiffs assignee had no right to redeem because the prior decree operated as res judicata. it may be regarded as settled that any number of suits for redemption of the same mortgage would be within the period of limitation unless the right to redeem has been lost in the meanwhile, by act of parties or by decree of court. In Raghunath Singh v. Mt. Hansraj Kunwar, AIR 1934 PC 205 the Privy Council held in a converse case, that unless it could be said that a decree involved a decision that the mortgagor's right to redeem was extinguished, it cannot operate by way of res judicata so as to prevent the Courts, under S.11 Civil Procedure Code, from trying a second redemption suit. The Federal Court has also said so in Subba Rao v. Mattapalli Raju, AIR 1950 FC 1. This is enacted in the proviso to S.60 of the Transfer of Property Act.

(3.) The Judgment Ext. D.3 has in my opinion negatived the right of the plaintiff's predecessor in title to redeem the mortgage, on the ground, that that suit for redemption was barred by res judicata. Ex. D.3 too, has the force of res judicata so far as the present suit is concerned. For these reasons, I come to the conclusion that the plaintiff has lost right to redeem the mortgage. In reversal of the decrees of the Courts below, the second appeal is allowed and the suit for redemption is dismissed. In the light of the contentions raised by both parties in the two courts below and In view of the fact that the respondent has not entered appearance in this Court, I direct the parties to bear their costs throughout.