VENKATA RATNAMMA Vs. SUNDARA RATNAMMA

JUDGEMENT

(1.) Plaintiff is the appellant. This appeal arises out of a suit filed for recovery of the principal amount Rs. 15, 000/- and interest thereon on the foot of a mortgage. The defendants are the successors to late Sivakoti Laxmana Rao and also Narayana Rao and as such they are liable to pay the debt due under the mortgage executed by their predecessors. As the defendants failed to pay interest on the mortgage amount the plaintiff filed a suit O. S. 473/1970 on the file of District Munsif Court, Visakhapatnam and a decree was passed for interest payable upto 23-9-1970. Subsequent to the decree also the defendants failed to pay interest and also the principal and therefore the suit is filed. The written statement was filed on behalf of the defendants stating that the plaintiff should be put to strict proof of passing the consideration and the mortgage does not bind the defendants. The plaintiff has to prove that the debt incurred is for the benefit of the joint family. Further, the present suit is barred under Order 2, Rule 2 CPC in view of the filing of the suit O. S. 473/1970. The suit filed by the power of Attorney also is questioned as illegal and void. On the above pleadings appropriate issues were framed. The court below found that the suit mortgage bond is true valid and binding on the defendants and the plaintiff's agent has power to sue on behalf of the plaintiff. It was held that the suit is barred under Order 2, Rule 2 CPC as the cause of action is identical with that of O. S. 473/1970.

(2.) The learned counsel for the appellant contended that the prior suit O. S. 473/1970 was cofined to the recovery of interest and personal decree and the present suit for principal and accrued interest as against the mortgaged property is not barred under Or. 2, Rule 2 CPC. The learned counsel for the respondent contended that the former suit O. S. 473/1970 even though filed after expiry of two years restricted the claim to the interest only though the cause of action arose for the recovery of principal also and as such the present suit does not lie. Order 2, Rules 1 and 2 C.P.C. are as follows:

(3.) The learned counsel for the appellant relied upon a decision of the Rajasthan High Court in Ramanath vs. Karnidan. In this case the mortgage was for a sum of Rs. 4, 000/. The mortgage stipulated the payment of interest every month and on failure to pay interest for six months at any time such interest accrued would be treated as principal and interest was payable on the said amount. In the event of failure to pay the entire amount on demand the mortgagees are entitled to file a suit for decree by gale of the mortgaged property and personal decree as well and further the Mortgagees have a right to file a separate suit for personal decree for arrears of interest alone. Initially the mortgagees instituted a suit for recovery of Rs. 797/-towards interest and in this suit the personal decree was sought for against the defendants. The suit was decreed on 8-10-1959. The mortgagees filed a second suit for recovery of the principal sum of Rs, 4, 000. After survey of several decisions Modi, J held as follows :