Decided on October 16,1968

MATHAI BABU Respondents


- (1.) The second appeal is filed by the third defendant in O. S.78 of 1965 on the file of the Munsiff's Court, Shertallai.
(2.) The plaintiff filed the suit for redemption of the mortgage dated 22-1-1118 in respect of plaint item No. 1 and for recovery of the same. Plaint item No. 2 is a building in plaint item 1. The suit was contested by defendants 2 and 3. According to them, the mortgage was taken by their father benami in the name of the first defendant who is their mother. They therefore claimed value of improvements to the extent of Rs. 3500/. It was also pleaded by them that the suit is barred by res judicata on account of the decision in O. S.223 of 1956 on the file of the same court between the same parties for redemption of the very same mortgage. Ext. D1 dated 22-12-1961 is the copy of the decree in the suit. By the said decree the plaintiff was allowed to recover the property from the defendants on deposit of the mortgage money and the value of improvements. Ext. D1 has fixed the compensation payable in respect of the building at Rs. 752.44 and in respect of the trees at Rs. 2528.02.
(3.) The courts below overruled the plea of res judicata and allowed the plaintiff to redeem the mortgage and to recover possession of the plaint property on payment of mortgage money and value of improvements. The compensation payable to the defendants both in respect of the building and the trees was fixed at Rs. 1590.08. The second appeal is filed by the third defendant against the concurrent decrees of the courts below.;

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