MADHAVAN PILLAI Vs. VASU PILLAI

JUDGEMENT

(1.) One of the defendants in a suit for redemption of a usufructuary mortgage wants to get transposed as the plaintiff. But the application filed by him for that purpose was disallowed by the Trial Court. Hence he has filed this Civil Revision Petition.

(2.) The usufructuary mortgage was created by the father of the plaintiff early in 1100 M. E. On the death of the original mortgagor the right of redemption had devolved on his children. The plaintiff and this petitioner are brothers, being the children of the original mortgagor. The suit was filed by the sole plaintiff in which the other comortgagors were also made defendants. The petitioner is the 11th defendant. As he did not enter appearance in the suit earlier he was set ex parte. . Though be made an attempt to have the ex parte order against him set aside, he did not succeed. The main relief claimed in the suit is for redemption of the mortgage on behalf of all the mortgagors including the petitioner.

(3.) The suit was once dismissed for default. But the plaintiff then filed an application for restoration of the suit. Though the application for restoration of the suit was dismissed by the Trial Court, it was allowed by the appellate Court. In the present application to transpose him as the plaintiff the petitioner has stated that the plaintiff is unwilling to prosecute the suit. He has further averred in the said application (hat he has confidential information that the present plaintiff would have the suit again dismissed for default or due to non prosecution. He apprehends that the plaintiff may even withdraw the suit without the consent of the other comortgagors. It was in the aforesaid background that he filed the application to get transposed as the plaintiff.