CHUNNILAL Vs. AMIR AHMEDI BEE

JUDGEMENT

(1.) This appeal on behalf of the plaintiff a out of a mortgage suit filed by him for the (sic)covery of principal and interest amount.

(2.) The facts are: The respondents on 1942 through a registered mortgage deed mortgaged the suit property with the appellant a sum of H. S. Rs. 11,000/- agreeing to pay mortgage amount together with interest pay every month and compoundable every within five years, with a further stipulation if they fail to pay interest for six month appellant would be entitled to recover the and of interest or the whole of the amount not standing the stipulation for payment in years. The respondents made default in pay of the monthly instalments of interest. The appellant filed a suit in the Subordinate Judge Court, Secunderabad on 24-6-1950 for rec(sic) of interest amount. This suit was decre(sic)parte. Thereafter the appellant filed the sent suit for recovery of the principal amo(sic) 1-9-1952. The respondents in their written (sic)ment, apart from the other objections, p(sic) that the suit was barred under O. 2, R. 2, (sic). The Court below accepted the contention respondents and dismissed the suit. The plaintiff has now come up in appeal.

(3.) Sri Rangachari, the learned counsel for the appellant argued that the Subordinate Judge Ted in applying the provisions of O. 2, R. 2, C. P. C. to the facts of the case in dismissing the suit without calling for the record and see(sic)g whether the cause of action in the previous it and the present one was the same or not the next urged that in paragraph 2 of the earlier (sic)aint the appellant had clearly reserved his (sic)ght to file a separate suit for recovery of the (sic)incipal amount and the respondents did not specifically deny this fact which amounts in law a separate agreement giving a fresh cause of (sic)tion to the appellant. He next contended that (sic) right to recover interest and the right to cover the principal amount are two different uses of action and the learned Subordinate Judge failed to appreciate the legal position.