MOHAMMAD SANOOWAR ALI Vs. ASMAN ALI

JUDGEMENT

(1.) The present suit was filed in 1978 praying for a decree of redemption of mortgage relating to the suit land. The case of the plaintiffs, in short, was that the suit land was mortgaged to defendants 1 to 3 on 2-3-62 and the contract was embodied in two documents executed on the same date by one of which the property was absolutely transferred to these defendants and by the second an Ekrarnama was executed by these defendants to re-transfer the suit land. According to the plaintiffs, the transaction was in the nature of an English mortgage. The defendants denied the averments and a plea was also taken that the suit was barred by res judicata in view of the fact that an earlier suit (TS 16/70) filed by the plaintiffs was dismissed on contest which decree was affirmed in an appeal. In the earlier suit the plaintiffs had prayed for specific performance of the agreement relating to re-conveyance of the suit land by relying on the Ekrarnama. The suit was, however, dismissed, so too the appeal arising out of it.

(2.) The issue relating to res judicata was taken up as a preliminary issue on the prayer of the learned counsel of both the sides. By an order passed on 10-2-81 it was held that the suit was barred by res judicata and the case was fixed for peremptory hearing on 30-3-81. On that date, it was however, felt that in view of the finding relating to res judicata no useful purpose would be served in proceeding with the case. The suit was therefore. dismissed. Feeling aggrieved, the plaintiffs have preferred this revision.

(3.) The revision came up for hearing on 30-8-84 on which date it was stated that the view taken by the Court below that the suit was barred by res judicata could not be upheld. The matter was nonetheless not remanded to the trial Court because both the sides desired that this Court itself should go into the merits to put an end to the litigation between the parties reging at least from 1970. The case was, therefore, fixed for further hearing after four weeks. Further hearing took place on 23-11-84 and by an order passed on that date, the case was remanded to the learned trial Court for reasons given in that order to decide the nature of the transaction in the light of the observations made in the order. The learned trial Court thereafter heard the parties and has come to the conclusion vide his order dt. 15-1-86 that the transaction must be regarded as "mortgage of simple nature".