ANGADI MALLAPPA Vs. NEELANA GOWDRA KARE GOWD

JUDGEMENT

(1.) These second appeals arise out of two suits which are connected and similar in nature. The plaintiffs are the same in both the suits and defendants 2 to 13 are the same in both the suits, only the 1 defendant is different. The facts are: One Linganna Gowd died about the end of 1915 The defendants 2 to 13 of these suits alleging themselves to be the creditors of Kare Gowd, the deceased, in respect of certain promissory notes, filed a suit, O.S. No. 176 of 1916 to recover the amount. In that suit there were 6 defendants. First and second defendants were the sisters of Kare Gowd; the third defendant was the sister's son and defendants 4, 5 and 6 were impleaded as parties on the ground that they were in possession of some of the properties of the deceased. Defendants 1 to 5 never appeared. The sixth defendant alone filed a written statement but he too did not appear at the time of the trial. A decree was given on the notes. Some time after the present plaintiff's tiled O.S. No. 697 of 1919 for a declaration that they were the heirs of Linganna Gowd. In that suit the creditors abovementioned and all other persons in possession of the properties of the deceased were made parties and they obtained a decree. The decree-holders in that promissory notes suit began to execute their decree and in execution sales the 1 defendant in each of these suits purchased the properties. There was then a scramble for possession. An order was made sustaining the possession of the 1 defendant in each case and referring the plaintiffs to a regular suit. The present two suits are the consequences of those orders.

(2.) One technical objection in S.A. No. 199 of 1925 may be disposed of. That suit originally related only to two items. It was riled within one year of the order maintaining the defendants's possession. The plaintiffs then discovered that they omitted another item. They then applied for amendment of the plaint which was ordered with the result that the third item to the schedule was added. Even then they did not amend the body of the plaint by putting the number of the execution application relating to that item but otherwise the history of that item is the same as that of items 1 and 2. Above all the application for amendment was not opposed by the defendants. It was ordered without any objection. The effect of that amendment is to date back the suit as no new party is added. In the result the suit is, I think, within time in respect of the three items and this objection fails.

(3.) We now come to the main point in this case, which has been elaborately argued by Mr. Govinda Rajachar for the appellant. He contends that the decree in O.S. No. 176 of 1916 having been obtained by him bona fide against the two sets of defendants in that suit, the 1 set being believed by him to be the heirs and the second set being persons in possession, the decree is binding on the present plaintiffs who no doubt have since been held to be the actual heirs of Linganna Gowd.