A RARICHAN Vs. ELAMBILAKAD VACHAYIL DAMAYANTI

JUDGEMENT

(1.) The facts of the small cause suit out of which this revision petition arises may be briefly stated as follows: . Certain properties were mortgaged jointly to Chandan (the 1 defendant) and Bapputi (now represented by the 3 defndant). Chandan submortgaged his interest to Damayanti (the plaintiff) and Bapputi, his interest to Rarichan (the 2nd defendant). The jenmi (Ayyappan) brought a suit to redeem the mortgage in O.S. No. 145 of 1916. In that suit Damayanti was not a party; but Rarichan was impleaded as 4 defendant and claimed compensation for a shop on the footing that it was in the portion submortgaged to him by Bapputi, and in appeal this question was decided in his favour (A.S. No. 138 of 1917 of the Temporary Subordinate Court of Palghat).

(2.) Damayanti filed the present suit on the ground that the shop was in the portion submortgaged to her and not in the portion submortgaged to Rarichan, that O.S. No. 145 of 1916 was wrongly decided on account of the collusion and fraud of Chandan and Rarichan, that the amount of compensation ought to have been awarded to Chandan and that she is now entitled to it as his submortgagee. The District Munsif found there was no collusion but also found "that the shop was in the portion belonging to the 1 defendant and gave plaintiff a decree. The 2nd defendant (Rarichan) filed this revision petition.

(3.) Before me it is contended by the petitioner (1) that after the decree in O.S. No. 145 of 1916, the rights of the submortgagee were extinguished (2) even if they were not) the plaintiff's remedy is against the 1 defendant.