MADHAVAN UNNITHAN Vs. SUMATHI AMMA

JUDGEMENT

(1.) The sole question is whether the present suit for redemption instituted by the appellants was rightly held by the courts below to be barred by res judicata by reason of a decree in O. S. No. 285 of 1968.

(2.) The earlier suit was instituted by the present first plaintiff against the present defendant for redemption of the very same mortgage that is sought to be redeemed in the present suit. The earlier suit was dismissed on the ground that what was sought to be redeemed then was not redeemable by reason of the statutory conversion of what was once a mortgage into a deemed tenancy in terms of S.4A(1)(a) of the Kerala Land Reforms Act, 1963 thereby conferring fixity of tenure upon the deemed tenant. In other words, the earlier suit was dismissed with a declaration that the properly was not redeemable by reason of the operation of an intervening statute.

(3.) Counsel for the appellants submits that, in a mortgage suit, an earlier decree made otherwise than in terms of Form 7D of Appendix D of the C. P. C. does not operate as res judicata so as to bar the subsequent suit. He relies upon the proviso to S.60 of the Transfer of Property Act, 1882 which reads: