VELAYUTHAN PILLAI NEELAKANTA Vs. MATHAVAN PILLAI MATHEVAN PILLAI

JUDGEMENT

(1.) THIS appeal involves a question of some interest which could be tersely stated in the following form, namely, whether a subsequent suit for redemption of a mortgage would be barred by limitation or application of the principle of res judicata, where, in a prior suit for redemption between the same parties it had been heard and decided that that suit was time-barred with reference to Article 148 of the Limitation Act. The question, in this particular form, does not appear to have been advanced in any of the decisions in the extensive case-law that has been cited before us. The facts essential for an appreciation of the setting in which the question has arisen are simple, and may be stated as follows :

(2.) THE property in question belonged to one Esakki Udayamma, who executed a mortgage in respect thereof on 9-4-1058 (M. E.) in favour of Kesavan padmanabhan. A second mortgage also came into existence on 21-4-1082 (M. E.)in favour of a certain Adichan. Esakki Udayamma, later sold the property on 21-91082 (M. E.) to Parvathi Kochu, with a direction to the vendee to redeem the earlier mortgage in favour of Kesavan Padmanabhan. Adichan, the subsequent mortgagee, filed a suit on the foot of his mortgage (O. S. No. 64 of 1093 M. E. of the District Munsif Court of Padmanabhanpuram) to which suit Parvathi Kochu had been impleaded as a party. There was a decree in favour of the mortgagee, and the property was sold in execution and purchased in court auction by one narayana Pillai. who also took delivery of the hypotheca through court. Subsequently, this Narayan Pillai sold the property on 14th July 1118 (M. E.) in favour of Neelakanta Pillai, the plaintiff in the present action, and the appellant before us. Parvathi Kochi was succeeded by another, with respect to her right, and this individual conveyed her interest in the property in favour of Madhavan Pillai in 1116 M. E.

(3.) NEELAKANTA Pillai (plaintiff) filed O. S. No. 1060 of 1118 M. E. (District Munsif court, Padmanabhapuram) to redeem the mortgage dated 9-4-1058, impleading madhavan Pillai, the vendee from Parvathi Kochu, as defendant. It was in this suit that the defendant raised the plea that the suit was barred under Article 148 of the limitation Act, being beyond the period of limitation reckoned from the earliest date upon which the suit for redemption could be brought. The suit was decreed, and an appeal to the District Court of Nagarcoil failed. There was a second appeal to the High. Court of Travancore-Cochin (S. A. No. 357 of 1124) which, was allowed dismissing the suit, and Neelakantan Pillai (plaintiff) filed an application for review of the judgment and decree in S. A. No. 357 of 1124, which equally failed. As the plea of res judicata arises primarily with regard to these anterior proceedings, it is of some importance to appreciate how the question of limitation was earlier decided. The following passage in the judgment of Koshi, C. J. , in S. A. No. 357 of 1124 (M. E.) may be appropriately extracted here :