EAPEN MATHAI Vs. ABDUL KADIR KUNJU

JUDGEMENT

(1.) Two questions arise for decision in this second appeal, namely, whether the suit, out of which it arises, is barred by res judicata on account of the decision, Ext. I, and whether it is barred by limitation. On the first question, namely, the question of res judicata, the findings of the lower courts are concurrent; and on the second they are divergent. The lower appellate court found that there was no bar of limitation. But, in spite of that finding, it had to confirm the decision of the Trial Court dismissing the suit as it concurred with the Trial Courts finding that Ext. I operated as res judicata.

(2.) The suit was for recovery of Rs. 1,500/- due under a hypothecation bond, Ext. A, Rs. 1,000 being the principal and Rs. 500/- arrears of interest. Plaintiff was a subscriber in a chitty, and on prizing his ticket he drew the prize amount executing a chitty hypothecation bond in favour of the foreman jointly with defendant 1. The properties hypothecated under the chitty hypothecation bond belonged to defendant 1, and they were hypothecated presumably because the plaintiff had no property of his own to be given as security to the foreman. After receiving the prize amount, which came to Rs. 954-10 Chs.-11 Cash, plaintiff gave that amount and a further sum of Rs. 45-17 Chs.-5 Cash, making the total amount of Rs. 1,000, to defendant 1 and took from him Ext. A chitty hypothecation bond. The suit was for the recovery of the amount due under Ext. A. The rate of interest stipulated for in Ext. A was 12 percent per annum and, under its provisions, defendant 1 had to pay the future subscriptions for the chitty with that interest. There were two drawings each year and for each drawing the subscription was Rs. 60/. Thus, the annual interest payable under Ext. A was sufficient for the payment of the subscriptions for the two drawings every year in the chitty. After receiving the amount under Ext. A defendant 1 paid the subscriptions in the chitty only for a few instalments and then defaulted to pay further subscriptions, and so, the foreman filed a suit against him and the plaintiff for arrears of subscriptions due under the chitty hypothecation bond, and the judgment in that suit is Ext. 1. In Ext. I suit this plaintiff, who was defendant 1 therein, remained exparts, and that suit was contested only by defendant 2 therein who is the present defendant 1. He contended interalia, in Ext. I suit that there was a special agreement between him and the present plaintiff as regards the manner of the discharge of the liability under the chitty hypothecation bond, that on account of the present plaintiffs default in the matter of that agreement he had to get damages from him, and so in any event, he should not be made liable both under the chitty hypothecation bond and under Ext. A. Except in regard to the last contention the findings in Ext. I were against him. So far as the last contention was concerned the direction in Ext. I was: The first defendant (i. e., the present plaintiff) is not entitled to realise Rs. 954-10 and interest thereon due under the hypothecation bond (Ext. A) in his favour executed by the second defendant in the circumstances of this case. It is this direction in Ext. I that was relied upon by defendant 1 as constituting res judicata in the present suit. As stated already, the lower courts upheld this contention.

(3.) As regards what would constitute res judicata between co-defendants it has been laid down by the Privy Council in AIR 1931 P. C. 231: