KASHIRAM LAXMAN KADAM Vs. MAHESHWAR LAXMAN GONDHALEKAR

JUDGEMENT

(1.) This suit was brought by Kadams the present plaintiffs to redeem a mortgage, dated June 2, 1829, which comprised four pies takshim belonging to the present plaintiffs, It is conceded that the mortgage security was split up. By Exhibit 47, the purshis signed by the pleaders on behalf of the defendants, it is admitted that the plaintiffs share comprises only four pies and that if accounts are taken under the Dekkhan Agriculturists Relief Act, the profits in respect of the four pies share will be found Sufficient to wipe off the whole mortgage debt. The only question, therefore, that arises for decision is whether the present suit is maintainable notwithstanding the previous decision in Suits Nos. 1217 of 1866 and 351 of 1911. Both the lower Courts held that the present suit was not barred by virtue of the decision in Suit No. 351 of 1921. The learned Subordinate Judge held that the suit was not barred by the decision in Suit No. 1217 of 1866, but the lower appellate Court held that it was be barred.

(2.) Suit No. 351 of 1911 was filed by defendant No. 1 for partition of his share of 1 anna and 9 pies, The present plaintiffs, being owners of four pies share and interested in the equity of redemption, wore joined in the suit as defendants Nos. 83 to 85. The Court assumed that the family of defendant No. 1, that is, Gondhalekars, had become owners as more than sixty years had elapsed from the date of mortgage, It appears that the Courts then failed to notice one important point, namely, that the period for redemption of the mortgage of 1829 was twenty- five years, and, therefore, the redemption would be duo id the year 1854 and the suit for redemption would not be barred till 1914, It was, however, held in 1911 that the right of redemption was barred by reason of the fact that the parties to the suit lost sight of the fact mentioned above that the mortgage had provided for a period of twenty-five years for redemption. Further, the Gondhalekars as mortgagees would in any event be entitled to remain in possession and the question as to the extinction of the mortgage was not gone into in that suit. Therefore, on both these grounds, namely, that the parties were under an erroneous belief that the mortgage deed of 1829 did not provide for a period of redemption, and secondly, that the mortgagees in any event were entitled to remain in possession, the question as to the extinction of the mortgage cannot be considered to have been heard and finally decided in that suit. It was held by both the Courts that the present suit is not barred by the decision in Suit No. 351 of 1911, and it is not argued before me on behalf of the respondents that the present suit is barred by the decision in Suit No. 351 of 1911, I would, therefore, agree with the view of the lower Courts that the present suit is not barred by the principle of res judicata by virtue of the decision in Suit No. 851 of 1911.

(3.) With regard to Suit No. 1217 of 1866, it appears that it was brought by three plaintiffs of whom Pandbarao Kadam was the assignee from the present plaintiffs with regard to the four pies share in the property. The defendants in that suit contended that two annas takshim was already redeemed in the year 1842 and Pandbarao was joined as he had purchased eight pies share in 1866 from the present plaintiffs and others belonging to the Kadam family. Plaintiffs Nos. 1 and 3 in that suit were ordered to be present in Court under Section 127 of Act VIII of 1859. They made default in appearance. The suit was, therefore, dismissed so far as their share was concerned, and redemption was allowed with regard to the sixteen pies takshim, and a decree was passed in favour of plaintiff No. 2 Rainajirao. During the course of the judgment, which is in Marathi, the learned Subordinate Judge stated "that the plaintiffs did not appear and show proper cause and therefore, they have got the adverse decision against themselves. Therefore, the right of redemption so far as they are concerned is extinguished. Only Ramajirao's right has remained and he has, therefore, the right of redemption." In the final decree, however, the right of redemption of the plaintiff Ramaji-rao was decreed, and nothing was said with regard to the extinction of the right of plaintiffs Nos. 1 and 3 with regard to their eight pies share.