YADDANAPUDI LAKSHMI NARASIMHAM Vs. DORAPALLI LAKSHMIPATHI

JUDGEMENT

(1.) Defendant 2 appeals against an order of remand of a suit made by the Additional Subordinate Judge of Bezwada. Designating the parties as they stand in the present suit, the few facts which have to be known are these. Defendant 2 obtained a mortgage decree against defendant 1, and in the Court sale defendant 3, it is said benami for the second, bought defendant 1's property. There then ensued. an arrangement between the three defendants and the plaintiff who appears to have been a creditor of the judgment-debtor in that suit, according to which defendant 1 executed a mortgage to the plaintiff for Rs. 400 of the property which had already been sold by the Court, and the auction purchaser, defendant 3, undertook to get the Court sale, set aside. He failed to do this, so that, as matters stood, the mortgage bond passed no legal title to the plaintiff. In these circumstances the plaintiff sued in O.S. No. 368 of 1920 for the recovery of the mortgage amount which the defendants had received from him, by the sale if necessary of the mortgaged property. The District Munsif who tried the suit gave him a decree which merely declared his mortgage right over the property and left him at liberty to enforce his-right in a separate suit. He accordingly filed another suit, O.S. 88 of 1925,. against the same three defendants to enforce this right. The District Munsif found that this suit was barred both by res judicata and under Order 2, Rule 2, Civil P. C. In the judgment appealed against, the learned Additional Subordinate Judge differs from this view, holding that the former suit was not one for the recovery of the money paid by sale of the hypo-theca but was a suit for damages for breach of contract. He considered that the two suits were based upon different causes of action. He accordingly restored the suit and remanded it for trial upon the other issues framed.

(2.) So far as the decree in O.S. 368 of 1920 declares the plaintiff at liberty to enforce his charge by a separata suit, it is, as the learned District Munsif has held, a nullity. There is ample authority: see for instance Sukh Lal V/s. Bikhi [1889] 11 All. 187 and Fateh Singh V/s. Jagannath Baksh , that except where such a power is conferred by law, as for example under Order 23, Rule 1, Civil P. C., a Court is not competent to give a party leave to file a separate suit in respect of any relief which it does not itself grant. The plaintiff cannot therefore rely upon this term in the decree to save his suit if it is otherwise barred.

(3.) The learned Subordinate Judge considers, as I have said, that the earlier suit was for damages, but in this view I am unable to concur. The first nine paragraphs of the plaint recount the facts. In para. 10 it is stated that the plaintiff is entitled to recover from the defendants the amount of Rs. 400 received by the defendants from the plaintiff the reason given being that defendants have fraudulently defeated the object of the contract entered into by them.