MAHADEV NARAYAN JOSHI Vs. SHRIDHARBHAT GOPALBHAT JOSHI

JUDGEMENT

(1.) The plaintiffs sued to recover on a mortgage bond for Rs. 200 dated August 28, 1912, passed by the defendant to one Krishnaji Govind Joshi, the grandfather of the plaintiffs. The defendant contended that the plaintiffs had no right to file the suit; that the debt had not come to plaintiffs share; that the land in suit had been mortgaged with possession in 1882 to the great-grandfather of the plaintiffs; that it had been decided in suit No. 325 of 1917 that this mortgage had been paid off; that the suit debt having not been claimed in that suit the present suit was barred by res judicata; and that the suit debt had been paid off by the income of the land from the date of the suit mortgage.

(2.) The trial Judge held that the claim was barred as res judicata on account of the decree in Suit No. 325 of 1917.

(3.) The facts are that the land in suit, Survey No. 44, and another survey number were mortgaged, by the defendant's father to the plaintiffs grandfather in 1882. The defendant filed Suit No. 325 of 1917 under Section 15D of the Dekkhan Agriculturists Relief Act for accounts to be taken of what was due under that mortgage. The present plaintiffs, who were defendants in that suit, pleaded that there was a simple mortgage for Rs. 200 passed in 1912 still outstanding, and that the then plaintiff would have to redeem that mortgage also in the suit. No issue was raised on the question. The Court took an account of the mortgage of 1882 and decided that nothing was due on the mortgage deed in the suit. Section 15D of the Dekkhan Agriculturists Relief Act provides that at any time before the decree in the suit is signed , the plaintiff may apply to the Court to pass a decree for the redemption of the mortgage. Accordingly, as the plaintiff prayed for redemption and possession, and as the suit could be so converted at any time before the decree in the suit was signed, the Court made the following order :-" It is declared that the mortgage charge on the plaint properties held under the mortgage deed dated September 20, 1882, is fully satisfied, and that nothing remains due to defendants on that account. The plaintiff to recover immediate possession of plaint lands from defendants free of the above said mortgage charge."