TRIKKAIKKAT MADATHIL RAMAN ALIAS MULLAPALLI THIRUMUMPU BY HIS MUKTIAR RAMAN ALIAS KALLUR THIRUMUMPU Vs. THIRUTHIYIL PARAMAL KRISHNAN NAIR

JUDGEMENT

(1.) The contract on which the plaintiff sued in the present suit is distinct from that on which he sued in O.S. No. 91 of 1895. In the suit of 1895 the plaintiff included the whole of the claim which he was entitled to make in respect of the alleged cause of action on which he sued ( Section 43). His claim in the present suit on the mortgage of 1854 is not a matter which might and ought to have been made a ground of attack in his previous suit on the alleged mortgage of 1860 ( Section 13, explanation II).

(2.) There is a very strong body of authority to support this view. The law was exhaustively considered in Ramaswamayyar V/s. Vythinathayyar (1902) I.L.R. 26 M. 760. We agree with the decision in that case and with the decision in the latter case of Veerana Pillai V/s. Muthukumara Asari (1898) I.L.R. 22 M. 259 which followed Ramaswamayyar V/s. Vythinathyyar (1902) I.L.R. 26 M. 760.

(3.) Having regard to the current of authority we do not think the judgment in the case reported in Rangasami Pillai V/s. Krishna Pillai (1898) I.L.R. 22 M. 259 can be treated as binding.