KANAMATHAREDDI SEETHAMMA Vs. KANAMATHAREDDI KOTAREDDI AND ANR.

JUDGEMENT

(1.) ON 19th August, 1935, the decree -holder in O.S. No. 527 of 1930 attached the six items of property with which we are now concerned and a few other items in E.P. No. 383 of 1935. When the property was posted for sale on 13th July, 1936, the mother of the judgment -debtor intervened end claimed in her application, E.A. No. 1250 of 1936 (Ex. P -3), that she had been given a maintenance charge over these six items in a suit brought by her for that purpose (O.S. No. 349 of 1932) on the file of the District Munsiff's Court of Ellore). Four days before E. A. No. 1250 of 1936 was filed, the decree -holder and another filed a suit representing the general body of creditors for a declaration that the charge decree obtained by the mother of the judgment -debtor was collusive and not binding on the creditors and that the property already purchased in execution of the decree in O.S. No. 527 of 1930, as well as the items under attachment, were not therefore liable for her maintenance. On 13th July, 1936, when E. A. No. 1250 of 1936 came on for hearing, the decree -holder informed the Court that he had filed O.S. No. 231 of 1936 on 9th July, 1936. The Court thereupon passed the order,

(2.) IT has first been argued for the respondents that even apart from the mandatory provision of Order 21, Rule 63, Civil Procedure Code, the matter would not be res judicata as a result of the decision in O.S. No. 231 of 1936; because the parties were litigating under different titles in the two suits. O.S. No. 231 of 1936 was filed as a representative suit by the creditors; whereas the present suit was filed by auction -purchasers who did not claim as creditors or through a creditor but through the judgment -debtor, whose interest, they had purchased. The fact that one of them was also a decree -holder was immaterial. It was held in S. A. No. 1276 of 1941 by Abdur Rahman, J., that the suit was not maintainable as a representative suit; but he treated it as one by the two respondents with regard to their own rights. It is true that in that suit they figured as creditors and here as representatives of the judgment -debtor; but in both the suits there was a triangular fight between the decree -holder, the judgment -debtor, and the appellant. The appellant was contending on the one hand that she was entitled to this charge and was claiming that charge against the interests of both the judgment -debtor and the decree -holder. There was therefore a conflict between the judgment -debtor and the appellant in the former suit, and in the latter between the appellant and the respondents, who claimed through the judgment -debtor. In Akkammal v. : AIR1943Mad36 , under similar circumstances, it was held the bar of res judicata would undoubtedly have applied had it not been for the mandatory requirements of Order 21, Rule 63, Civil Procedure Code. We respectfully agree.

(3.) FROM Arichendrana Deo Garu v. Ramanna Chandiri, (1866) 3 M.H.C.R. 207 onwards, it has been a well -recognised principle of law that a plaintiff who acquires a fresh claim during the pendency of his suit or afterwards can bring another suit on the fresh cause of action. In that case, the plaintiff claimed a right to resume a certain jeroiti land which had been temporarily alienated. He eventually failed on that cause of action; but during the pendency of the suit the Government had transferred to him the rights in that village. He thereupon filed a fresh suit in which he claimed that the mokhasa which was the subject of the litigation in the earlier suit had lapsed to the Government and had been transferred to him by the Government. it. was held that he was entitled to put forward that plea and that the decision in the earlier suit did not operate as res judicata.