M BALASUBRAMANYAM Vs. Y SUBBA RAO

JUDGEMENT

(1.) The petitioner herein is the respondent in the small cause suit for realisation of a sum of Rs. 807/- which was decreed and against which the defendant filed this revision. The facts which led to the filing of this revision are.

(2.) The plaintiff had borrowed certain sum from the defendant by executing a promissory note on which the defendant filed suit O.S. No. 540 of 1982 and obtained a decree. The allegation of the plaintiff is that suppressing the earlier payments made by the plaintiff through Bank prior to the filing of the suit the defendant obtained the decree against him and got attached the salary of the plaintiff. In fact this amount ought to have been adjusted before any decree was issued. even otherwise his plea is that he is entitled to recover the said sum by filing an independent suit.

(3.) The defendant contends that the suit is not maintainable. The plaintiff had never contested the earlier suit filed by him and the plaintiff was set ex parte and that the plaintiff had not taken steps to set aside that decree that since the decree had become final the plaintiff cannot sue to recover the amount as such action is barred by res judicata. The lower Court however accepted the contentions of the plaintiff herein that out of his Bank account a sum of Rs. 600/- was withdrawn from the Bank by the defendant but he paid only Rs. 100/- to the plaintiff, and so the plaintiff's claim is not barred by res judicata. Hence this revision by the defendant.