P DASARTHY NAIDU Vs. PALALA KUMARAMULL RAJA (DEAD)

JUDGEMENT

(1.) This is a suit for redemption. The two main defences are that the suit is barred by Order II, Rule 2, and also by Section 11 of the Civil Procedure Coda. The Subordinate Judge overruled these objections and passed a preliminary decree for taking accounts. The defendant has appealed.

(2.) In order to understand the contentions in appeal it is necessary to set out the history of the case. The property in suit belonged to the 1st plaintiff. He executed a deed of mortgage in favour of one P. Rajaratnam Naidu on the 12th of July 1892. On the 6th of July 1898 he executed a general power-of-attorney to the same individual to facilitate the collection of rents from the tenants. One of the conditions of the power-of-attorney was that the agent should appropriate the net income towards the mortgage-deed and should also pay to the mortgagor a certain fixed monthly allowance. The relation between the mortgagor and the mortgagee became strained in or about the year 1910. In that year Original Suit No. 36 of 1910 on the file of the District Court of Chinglepnt was instituted against Rajaratnam Naidu by the plaintiff for the cancellation of the power-of attorney executed in 189; and for accounts. The defendant pleaded in limine to that suit that as the powerof-attorney was part of the mortgage transaction, the plaintiff should sue on the mortgage and not on the power-of attorney. The then District Judge upheld this objection and dismissed the suit. The second suit was filed in the Original Side of the High Court, viz., Original Suit No. 232 of 1914, in which it was claimed that the mortgage has become discharged, that the power-of-attorney should be cancelled and that the defendant should render an account. At the time of this suit Rijaratnam Naidu had died and the present defendant who is his legal representative was impleaded as defendant. Mr. Justice Kumaraswami Sastri who heard the original suit was of opinion that it was barred by res judicata and dismissed it. An appeal was preferred against that decree. At the hearing of the appeal, the plaintiff applied for permission to withdraw the suit with liberty to institute a fresh suit. This permission was granted and the present suit was instituted in the District Court of Chinglepnt for redemption based upon the mortgage of 1892.

(3.) The contention that the suit is barred by res judicata may be shortly disposed of. It is not denied that at no time was there any decision on the merits. The suits on both the occasions were dismissed on the pleadings. It is, therefore, clear that the present suit is not tarred by Section 11 of the Civil Procedure Code. Very recently, the Judicial Committee pointed out in Abdullah Ashgar Ali Khan v. Ganesh Dass 42 Jnd. Cas. 959 : 34 M. L, J. 12 : 128 P.W.R. 1917 : 22 M.L.T. 451 : 22 C.W.N. 121 : 3 P.L.W. 381 : 26 C.L.J. 568 : 15 A.I.J. 889 : 19 Bom. L.R. 972 : 7 L.W. 62 : 132 P.L.R. 1917; (1918) M.W. N; 7.(P.C.) that where the matter has not been heard and finally decided there can be ho bar of res judicata.