RAM JIWAN MISRA Vs. RAM JANKI

JUDGEMENT

(1.) This is a civil revision which has been referred to a Bench.

(2.) The plaintiff brought a suit as successor of the original mortgagor to redeem the mortgage under Section 12 of the Agriculturists' Belief Act. In defence to the suit the bar of Section 11 C. P. C. was raised.

(3.) It appears that there was a previous litigation inter partes relating to the very same plots in respect of which another mortgage had been made. The instant suit was in regard to a subsequent mortgage. When the prior suit was heard, the trial court held that the mortgage set up in the prior suit was not proved. Upon that finding the prior suit was dismissed. The plaintiff of that suit preferred an appeal and the appellate court recorded two findings in the appellate judgment. The first issue was as to whether plaintiff of that suit was the successor of the original mortgagor. This issue was answered against the plaintiff. The second question that was considered by the appellate court in that suit was whether the mortgage had been proved. The court came to the conclusion, agreeing with the trial court, that the mortgage had not been established. That finding of the appellate court in the previous suit whereby the appellate court had held that the plaintiff of that suit was not the successor in interest of the mortgagor, who had created the mortgage in that suit, operated as res judicata in the instant suit. It may be stated that in the instant suit also the plaintiff was claiming to be the successor in interest of the original mortgagor the original mortgagor being the same both in this suit and in the previous suit. The trial court in the instant suit decided that the suit was barred by res judicata because of the decision on the question of the plaintiffs title to redeem the mortgaged property in the earlier suit. The court below, however, has come to the conclusion that the primary matter, which called for consideration in the earlier suit was whether the mortgage was established and that the question whether the plaintiff of that suit was entitled to institute the suit, i.e. whether the plaintiff had a locus standi was not directly in issue in the previous suit and the decision of that question was not essential for the disposal of that case, and has held that the finding on locus standi in the earlier suit cannot therefore operate as res judicata in the instant suit.