BADRUDDIN ABDUL RAHIM MUKHARI Vs. SITARAM VINAYAK APTE

JUDGEMENT

(1.) The appellants in this Letters Patent Appeal were the original defendants in Regular Civil Suit No. 6 of 1926 brought against them by the respondent, the original plaintiff, in the Court of the Second Class Subordinate Judge, at Panvel. The plaintiff prayed that an account may be taken from the defendants of the income of a certain property which had been mortgaged by the grandfather of the plaintiff to one Ibrahim walad Badruddin Mukhari since deceased who was the grandfather of defendants Nos. 1, 2 and 3 and the father of defendant No. 4. The plaintiff also prayed that the defendants may be ordered to give possession of the mortgaged property to him, or in the alternative, if for any reason the possession of the mortgaged property cannot now be given by the defendants to the plaintiff, the defendants may be ordered to pay to the plaintiff the market value of the property. The defendants by their written statement and a further supplemental written statement raised a contention that the original mortgagee had never been in possession and they (his heirs) have not since his death been in possession and that the original mortgagee had obtained a decree against the original mortgagor in Regular Civil Suit No. 465 of 1877 on the files of the Panvel Court in respect of the said mortgage transaction and that the present suit for redeeming the mortgage or for accounts was barred by res judicata.

(2.) At the trial a preliminary issue was raised on behalf of the defendants, viz., whether the present suit was barred by res judicata on account of the decision in Regular Suit No. 465 of 1877. The Subordinate Judge held that it was so barred and dismissed the plaintiff's suit with costs. From this decision the plaintiff appealed to the District Court at Thana. The District Judge reversed the decision of the trial Court and directed the suit to proceed according to law. The defendants filed an appeal from Order No. 4 of 1928 in this Court against the decision of the District Judge. That appeal was summarily dismissed by Mr. Justice Madgavkar. The defendants have filed the present Letters Patent Appeal from this order of dismissal of their Appeal from Order No 4 of 1928.

(3.) The only question we have to consider in this appeal is whether the suit is competent having regard to the decision in the previous suit.