MANIYAM SIDDAMA NAICKEN Vs. NANJAPPA GOUNDAN

JUDGEMENT

(1.) The first defendant is the appellant. This second appeal arises out of a suit instituted by the plaintiff for the recovery of Rs. 1,933-8-0 for balance of principal and interest alleged to be due on a mortgage, dated 12 October, 1914, executed by the first defendant in favour of one Subba Naicken deceased, for Rs. 1,500, repayable in one year with interest at 15 per cent, per annum and in default with interest at 18 per cent, per annum. Subba Naicken and the second defendant were brothers. The two brothers became divided and each of them was allotted a moiety of the mortgage amount then due. On the death of Subba Naicken in 1922 there was a partition between his two sons, Ramaswami and Govindaswami, at which Subba Naicken's share of the mortgage debt was allotted to Govindaswami.

(2.) On the 21 March, 1926 Govindaswami assigned his rights to the plaintiff who instituted the present suit for the recovery of the amount claimed in the plaint. The second defendant, the brother of Subba Naicken, died in the course of the suit and his son and heir, fifth defendant, was impleaded as his legal representative. Defendants 3 and 4 are alienees of portions of the mortgaged property.

(3.) The first defendant contended that the claim of the plaintiff was barred by res judicata by reason of the decision in O.S. No. 899 of 1925. It is not necessary to refer to the other contentions of the parties for the purposes of this second appeal. The first Court upheld the contention of the first defendant and dismissed the plaintiff's suit. On appeal the learned District Judge held that the suit was not barred by res judicata and gave the plaintiff a decree for the sum found due.