DURAICHAMI TEVAR Vs. ADIMUTHU NADAN

JUDGEMENT

(1.) PLAINTIFF's suit was to enforce a mortgage executed by the 1 defendant in his favour. The 2nd defendant in the case was the purchaser of this hypotheca from one Ramaswami Thevan who himself purchased it from the 1 defendant. The plaintiff's case has been dismissed by both the Lower Courts on the ground that it is barred by res judicata. The facts necessary for appreciating this ground of res judicata are mentioned in para. 3 of the appeal judgment. In 1913 the plaintiff instituted a suit against Ramaswami Thevan to recover Rs. 800. It was pleaded in that suit that there was an adjustment of accounts between the parties and in that adjustment the payment of Rs. 122 relied upon went towards the discharge of the present mortgage claim. Eventually that suit was dismissed. It was stated on behalf of the contesting defendant that since the matter of discharge of the present claim was considered in the previous suit and it was found to have been discharged, the claim cannot be adjudicated again in this case by the plaintiff. It appears to me that this argument is not sound. The 2nd defendant's purchase of the hypotheca under Ex. III was long before the suit and it cannot be said that in that suit his interests were represented; the decision, therefore, cannot be considered to be binding on him. It is unnecessary to discuss this question in extenso as the matter has been dealt with in a series of decisions. One decision of the Madras High Court that I would refer to is that reported in Anakkaran Puthiavalappil Mussan Haji V/s. Thiyan Thavara Koran and Ors. . There it was held that a lessee under a lease granted before a suit brought by or against his lessor is not bound by the decision therein against the latter if he (the lessee) was not himself a party to the suit. I think the principle of that decision applies to this case also. The same view is found enunciated in Joy Chandra Banerjee V/s. Sreenath Chatterjee (1904, ILR 32 C. 357 at 361; see also Ramchandra Dhondo Kulkarni v. Malkapa Bin Narsapa Devare and Ors. (1916) ILR 40 B. 679.

(2.) I hold, therefore, that the decision of the lower Court that the plaintiff's suit is barred by res judicata is wrong. I set aside the decision and remand the case to the first Court for disposal according to law. The appellant will have his costs in this Court. As regards the costs in the lower Courts they will abide the result. The appellant is entitled to get the refund of the Court-fee.