GURUSAMI AIYAR Vs. KAVERI BOYEE AMMAL

JUDGEMENT

(1.) This is a suit to recover the amount due under a deed of hypothecation, dated the 6 September 1884 and for sale of the property hypothecated. Both the Courts below have given decrees for the plaintiff; but in this Court it is contended that the suit should have been dismissed because the matter is (1) Res-judicata within Explanation II of Section 13 of the Civil Procedure Code and (2) because the plaint mortgage has ceased to exist as such having become merged as the plaintiff had become owner as well as mortgagee of the property hypothecated prior to the suit.

(2.) The facts are as follows:--On the 6 September 1884, the hypothecation bond now sued on was executed to Ranganatha Butt by Ranganatha Davay and his three sons, Balakrishna, Ramachandra and Venkatesa. Afterwards Ranganatha Davay and two of his sons, Balakrishna and Ramachandra, executed a simple debt bond to one Appasawmy Josier. Appasawmy died and his widows (of whom the present 1 defendant is one) brought Small Cause Suit No. 775 of 1886 against Ranganatha Davay and his three sons, Balakrishna, Ramachandra and Venkatesa under the bond and got a decree against Ranganatha Davay and his two sons Bala-krishna and Ramachandra only, the third son Venkatesa being exo-nerated from liability. In execution of that decree the plaint property was attached, but on the objection of the 3 son Venkatesa Ranganatha Davay, the father having died, his one-third share was exonerated with costs and only the two-thirds belonging to Bala-krishna and Ramachandra was brought to sale. This was purchased in March 1890 by the 1 defendant, who obtained a sale certificate. Venkatesa, the 3rd son, in execution of his decree for costs against the defendant attached this two- thirds and brought it to sale and it was bought in March 1890 for Rs. 14 by his brother-in-law Bavani Sankar Davay, to whom in June 1891 the plaint mortgage had been transferred by Exhibit A, endorsed on Exhibit A, the hypothecation deed now sued on.

(3.) The plaintiff in this suit is the wife of Balakrishna.