PERIASWAMI Vs. VAIDHILINGAN PILLAI

JUDGEMENT

(1.) This appeal arises out of a mortgagee's suit for sale. The mortgage sued on (Ex. A) was executed in 1925 by defendant 1 for himself and as guardian of his five minor sons. Defendant 2, the eldest son, attained majority during the pendency of the suit and by the written statement filed on behalf of the minor sons, questions were raised as to the binding character of the mortgage as against the interests of the sons in the mortgaged property. The mortgage was for a sum of Rs. 4,000. Objection was taken particularly in respect of two items of consideration, viz. a sum of Rs. 2,242 directed to be paid by the mortgagee to one Manicka Pillai who had obtained a decree against the father in Order Section No. 30 of 1921 on the file of the Court of the Trichinopoly Subordinate Judge's Court and a sum of Rs. 960-12-0 left with the mortgagee to be paid to a Nattukottai Chetti from whom money had been borrowed by defendant 1 on a promissory note (Ex. F) dated 9 October 1923. It was contended that the father had no necessity to borrow at all and had been leading an immoral life and that the moneys due both under the decree in O.S. No. 30 of 1921 and under the promissory note Ex. F had been borrowed for and applied to immoral purposes.

(2.) With reference to the decree debt, a further contention was raised on the strength of what happened during the pendency of O.S. No. 30 of 1921. In the first instance, the sons had also been impleaded as defendants in that suit. But on 12 July 1921, the pleader who appeared for that plaintiff endorsed on the plaint that he exonerated the sons. It is somewhat difficult to understand the reason given for the exoneration. It seems to be the opposite of a reason given for exonerating them. The result was that defendants 2 to 4 were treated as having been given up by the plaintiff and a decree was passed only against defendant 1 in that suit. It has been argued that, the decree in Order Section No. 30 of 1921 must be read as having impliedly negatived the liability of the sons for the amount then claimed and that their interests in the family property could no longer be made liable for that decree debt. The contentions above referred to, advanced on behalf of the sons, were overruled by the lower Court. Hence this appeal, by defendant 2.

(3.) In answer to the contention based on what happened in Order Section No. 30 of 1921, we may observe that it is not possible to hold that Sec. 11, Civil P.C., has any application to the circumstances of this case. Expln. V to that section can be invoked only in respect of any adjudication made by the Court. The fact that the plaintiff 1 who in the first instance asked for a decree against the joint family property so far as the interests of the minor sons therein were concerned, subsequently withdrew his claim as against them, can only bring the case under Order 23, Rule 1, Civil P.C. The result of such a withdrawal is not to bring in the operation of the rule of res judicata embodied in Section 11 but only to entail the statutory penalty enacted in Order 23, Rule 1, itself, viz. that no fresh suit can be instituted against those defendants on the same cause of action. It cannot therefore be said that anything that happened in Order 8. No. 30 of 1921 amounted to an adjudication, whether express or implied, that the sons are not liable in respect of the claim in that suit.