OUSEPH Vs. PORINCHU AND ORS.

JUDGEMENT

(1.) THE material facts are: Kunjaram, widow of Ouseph, hypothecating the share Ouseph had in the firm, St. Joseph's Tile Works, borrowed Rs. 1,750 from her husband's brother's four sons and executed Ext. 46 hypothecation deed dated 8th December 1951. This was when she was in pressing need for money to avert court sale of that share in execution of the decree in O.S. 60 of 1113 on the file of the Trichur District Court a decree charged on that share. At that time, this suit for dissolution of the firm, from proceedings where in this appeal arises was pending. It was provided therein, (Ext. 46), as follows:

(2.) IT is contended that the order on I.A. 252 of 1972 is not an appealable order and therefore, the lower appellate court had no jurisdiction to deal with that order. This appears to be so. I am not satisfied that this order is an order under Section 47 Code of Civil Procedure The preliminary decree is not executable and no execution was levied. Final decree has not been passed yet. The lower appellate court was not therefore competent to sit in appeal over that order, and consent would not cure that defect. I therefore set aside the lower appellate court's judgment in A.S. No. 246 of 1973 which is under appeal in this case before as mistakenly renumbered as C.S.A. 12 of 1975. I direct the office to restore the number originally assigned to the case when it was registered S.A. 102 of 1975.

(3.) SINCE the main objection is that I.A. No. 252 of 1972 is barred by the decision in O.S. No. 22 of 1965 by consent, I mark the plaint and the judgment in that case (produced before the trial court) Exts. B -1 and B -2. The submission is that applying the rule that when there have been two adjudications between the same parties in respect of the same right, the later decision governs them, the preliminary decree in this case, making Ouseph's heirs' 1/2/18 share in the firm subject to Ext. 46 mortgage, cannot be of any avail to Defendants 55 and 56 to claim any amount from the amounts realised in this suit.