SANKARA PILLAI Vs. NANI AMMA

JUDGEMENT

(1.) The plaintiff is the appellant. He sued for recovery of the amount under a hypothecation bond (Ext. A) dated 25-4-1104 executed by defendants 1 to 3 in his favour. The properties charged under the bond are described in schedules A and B appended to the plaint. Those in schedule B originally belonged to defendants 1 to 3 while the property in schedule A belonged to defendants 7 to 9 who sold the same to defendants 1 to 3 on the date of the hypothecation bond. Defendants 1 to 3 had executed a mortgage deed in favour of one Kurumba, the ancestress of defendants 4, 5 and 16 to 21, before executing the plaint bond, so that what was hypothecated under Ext. A was only the equity of redemption over A schedule property. Kurumba sued for recovery of the amount under the mortgage in O. S. No. 1435 of 1109. Though the present plaintiff was not originally a party to that suit, he was subsequently impleaded as additional seventh defendant. However no amended plaint was filed in that suit and no relief was sought for against him. The present plaintiff did not contest the suit and in execution of the decree obtained by Kurumba the property in schedule A was purchased and taken delivery of by defendants 4 and 5. The plaintiff applied to set aside the ex parte decree in O. S. No. 1435 of 1109 but the application was dismissed. His case now is that the decree is not binding on him and that he is entitled for a decree charged on A schedule property also. It was also prayed in the plaint that in case defendants 4 and 5 were found to have a prior charge, he should be allowed to redeem them on payment of the mortgage amount and interest. Defendants 4 and 5 contested the suit. According to them the decree in O. S. No. 1435 of 1109 was binding on the present plaintiff and the sale in execution of that decree extinguished his right over the property in schedule A. The plaintiff's claim for a prior charge and the right to redeem were also denied. The fifth defendant died during the course of the suit and her heirs were impleaded as defendants 16 to 21, They adopted the contentions raised by the fifth defendant. The Trial Court held that the plaintiff was not entitled to any relief in respect of the property in schedule A and granted the plaintiff a decree for recovery of the amount from defendants 1 to 3 and the properties in schedule B. The plaintiff appealed to the District Court, but the appeal was dismissed and he has preferred this second appeal.

(2.) The main point urged on behalf of the appellant is that the decree in O. S. No. 1435 of 1109 cannot operate as res judicata so far as this suit is concerned. Ex. C is copy of the plaint in O. S. No. 1435 of 1109 and Ex. II the decree in that suit. It is seen from the copy of the progress diary in that suit as well as from Ex. I that Kurumba applied for impleading the present plaintiff as a subsequent encumbrancer and that in pursuance to the order allowing the same he was impleaded as additional seventh defendant. Ex. VI is copy of the summons served on him. Service was effected by affixture as he refused to accept the summons. Copy of the decree, Ex. II, shows that the 7th defendant therein was impleaded as a subsequent encumbrancer. The appellant's contention is that the decree is not binding on him as no notice was issued to him on the impleading petition and as the plaint was not amended after he was impleaded. It is true that notice of the application was not served on him before he was impleaded but this is not a defect affecting the validity of the decree. Summons was duly issued and it was open for him to raise all contentions available to him. Ex. C shows that the plaint was amended by adding his name also as an additional defendant. The fact that he was impleaded as a subsequent encumbrancer was not expressly stated in the plaint so that the question whether he had a prior charge could not directly and substantially arise in that suit. To this extent it may be conceded that the decree would not operate as res judicata. This finding however cannot be of material assistance to the appellant as it is seen from Ext. A that what was hypothecated to him was only the equity of redemption of A schedule property. Having accepted Ext. A it is not open for him to contend that his charge is prior to that of Kurumba. The plaintiff is thus only a subsequent encumbrancer so far as A schedule property is concerned. The property was sold in court sale in execution of a decree to which he was a party and such a sale must be held to have extinguished his rights in the property. The only remedy that was open to him was to apply for setting aside the ex parte decree in that suit. Though he made an attempt in that direction the same proved futile. In view of this he can no longer seek to realise his amount by sale of A schedule property. The decrees passed by the courts below overruling his claim over A schedule property are therefore correct and do not call for interference. The question whether he is entitled to redeem A schedule property also does not arise in view of the facts mentioned above.

(3.) In the result the concurrent decrees are confirmed and the second appeal is dismissed with costs.