ADAKKALAM CHETTIAR Vs. RAMALINGA CHETTIAR

JUDGEMENT

(1.) THE judgment of the District Judge cannot in our opinion be upheld. In the decision in Adakkalam V/s. THEethan I.L.R. 2 Mad. 505, it was decided that if the first defendant in that suit, who is also the first defendant in the present suit, could prove the agreement to convey and the tender of the purchase money he should not be compelled to bring another suit to obtain specific performance of his contract of sale. It was added that if the plaintiff there, who, as the District Judge observes, may be identified with the plaintiffs in the present suit, brought with the knowledge of the agreement and the tender he ought not to be allowed to obtain possession. Issues were accordingly sent down and the two questions above set out were answered in the affirmative by the District Judge and in findings were accepted by the High Court and the suit of the plaintiff was dismissed. THE plaintiff has now brought the present suit in which it is admitted that the cause of action is identical with that dealt with in Adakkalam v. THEethan I.L.R. 2 Mad. 505. THE parties are also virtually the same. THE Subordinate Judge accordingly found that the present suit was res judicata by reason of the decision in the prior suit and on that ground dismissed the plaintiffs suit. THE District Judge has reversed his decision and held that there is no bar in consequence of the plea of res judicata. THE grounds of his decision are that when the judgment of the High Court in Adakkalam V/s. THEethan I.L.R. 2 Mad. 505 was passed the contract for sale was one on which the first defendant could sue, but that as that contract is now ineffective and cannot be pleaded, the facts on which a decision should now be based are materially changed and that the previous decision accordingly no longer concludes the parties. This, however, is a mistake. It will be found that when the final decision of the High Court was passed on the 2 April, 1859 the right to sue for specific performance of the contract for sale was already barred by limitation. It is clear from the judgment of the High Court that it was not intended by the learned Judges that the first defendants should bring a suit to enforce specific performance of his contract. We accordingly hold the present suit is barred as res judicata and set aside the decree of the District Judge and restore that of the Subordinate Judge with costs throughout.