APPAVU NADAR Vs. KESAVA PILLAI

JUDGEMENT

(1.) O. S. No. 900 of 1961 on the file of the Munsiff Court, Trivandrum was a suit for declaration of title, for cancellation of an order passed in execution of the decree in O. S. No. 467 of 1958, Munsiff Court, Trivandrum, and for an injunction restraining execution of the same. One of the defences raised to the said suit was that the suit was barred by S.47 of the C.P.C., that the plaintiff's proper remedy if any, was to agitate the matter in execution proceedings in O. S. 467 of 1958; and as in the said proceedings a decision adverse to him had been given as evidenced by Ex. P1, no fresh suit was maintainable. The defence was upheld by the Trial Court and the plaintiff's suit was dismissed; but on appeal, the learned District Judge of Trivandrum held that the said suit was not barred by S.47 of the C.P.C., and remanded the matter to the Trial Court for disposal on the merits, after considering the other issues, most of which had been left open by the Trial Court. Hence this appeal by the 1st defendant.

(2.) For the sake of convenience the parties would be referred to by their rank in the Trial Court.

(3.) The plaintiff had mortgaged a certain property to the 2nd defendant on 10-7-1952 for a consideration of Rs. 1,500/- of which Rs. 1,200/- was received in cash and the balance was agreed to be paid within a short time. Default having been made in payment of the said balance amount, the plaintiff filed O. S. No. 467 of 1958 in the Munsiff Court, Trivandrum for recovery of the balance mortgage amount. To the said suit the present 2nd defendant (mortgagee) was the 1st defendant; the present 1st defendant (appellant) was the 3rd defendant. The 2nd defendant in that suit was a sub mortgagee. The decree in that suit was exhibited as Ex D1. The judgment does not appear to have been exhibited in the Trial Court; but has been referred to in the judgment of the appellate Court. A certified copy of the same has been tendered before me with a petition to receive it as additional evidence. It is seen that the certified copy now tendered was produced before the Trial Court and was marked as Ex. D2. The reception of the document has not been opposed and the petition to receive the same has been allowed and the judgment in O. S. No. 467 of 1958 is marked as Ex. D2.