SHRIPAD GOPALKRISHNA CHANDAVARKAR Vs. SIDRAM SATAPPA DODAMANI

JUDGEMENT

(1.) THIS is a second appeal from a decree passed by the Assistant Judge at Belgaum modifying the decree of the trial Court and thereby decreeing the plaintiff's suit in toto.

(2.) THE plaintiff filed the suit out of which this second appeal arises for the recovery of a sum of RS. 4,998, including the interest due on two mortgages. The first mortgage, which is Ex. No. 85 in the case, was dated 2-7-1928, and was for a sum of Rs. 3,500. The second mortgage, which is EX. No. 84 in this case, was executed on 15-3-1929, and was in respect of a sum of Rs. 300. The two documents were executed by defendant 1 in favour of the father of the present plaintiff. Defendants 3 to 6 were the sons of defendant 1; defendant 2, who is the appellant before us, was a purchaser at an auction sale in execution of his own decree against the mortgagor's right, title and interest in the property, and as such he was impleaded as a party to the suit. It appears that prior to the institution of this suit, the plaintiff had filed Suit No. 43 of 1934 claiming possession of the property by virtue of a clause in Ex. No. 85, which empowered the mortgagee to obtain possession. That suit was dismissed by the trial Court on the ground that full consideration had not been paid by the plaintiff to the defendant. Thereafter the present suit was filed, and the principal contention taken by the defendants was that this suit was barred under Order 2 Rule 2. Several other contentions were also raised, but they are not material for the purposes of this appeal. The trial Court held that the claim in respect of the dues under Ex. No. 35 was barred tinder Order 2 Rule 2, Civil P. C. , though not barred by the other contentions taken by the defendants, namely, bar under Section 67a. T. P. Act, and res judicata. The learned trial Judge held that in respect of the dues under Ex. No. 84, the plaintiff's claim could not be said to be barred. In respect of that mortgage he found that RS. 600 were due to the plaintiff, and accordingly he passed a decree in favour of the plaintiff for that amount with proportionate costs.

(3.) AGAINST that decree the plaintiff filed a first appeal, being App. No. 3 of 1944, in the District Court at Belgaum. The learned Assistant Judge who beard the appeal was of opinion that in respect of the claim of the plaintiff under Ex. No. 85 his suit could not be said to be barred under Order 2 Rule 2. Accordingly he modified the decree of the trial Court and allowed the plain-tiff his claim in respect of the first mortgage also. The result was that the plaintiff's claim was decreed in full. It is against that decree that defendant 2 has come to this Court in second appeal.