DODDI DORAYYA Vs. BATHULA ADINARAYANA
HIGH COURT OF MADRAS
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SUBBA RAO, J. -
(1.) THIS second appeal arises out of O. S. Wo. 68 of 1947 on the file of the District Munsifs Court, Vizagapatam, a suit filed by the appellant to direct the defendants to put him in possession of the plaint schedule property and for a declaration that the entire amount due under the usufructuary mortgage dated 22nd July 1873 was completely discharged.
(2.) TO appreciate the contentions of the parties, it is enough to state the relevant facts. The plaintiff, alleging to be the owner of the equity of redemption and also the purchaser of two -thirds of the mortgage interest in the aforesaid mortgage, filed the said suit for redemption and for possession of the plaint schedule properties. The plaintiff's case is that he is an agriculturist and that, if the provisions of the Madras Agriculturists' - Relief Act are applied to the debt, the debt would be discharged. The defendants contended, inter alia, that the plaintiff is not an agriculturist and that the suit is premature. They also pleaded that the plaintiff is precluded from raising the plea that he is an agriculturist by reason of the order in the application taken by him under the provisions of the Madras Agriculturists' Belief Act. The learned District Munsif held that the decision in the earlier proceedings wquld not be a bar for the maintainability of the suit as, according to him, the plaintiff's right to file a suit was expressly reserved. The learned District Munsif and the learned District Judge in appeal held that the order in the earlier proceedings would operate as res judicata. They also held that the suit would be premature as, if the debt was not scaled down the mortgage debt would not foe discharged. The plaintiff preferred the above second appeal.
Mr. Ramamurthi, learned counsel for the appellant, contended before me that the view of the courts below on the question of res judi -cata is unsound. To appreciate his contention, it is necessary to notice the scope of the previous proceedings and the order made therein. As aforesaid, the plaintiff filed O. P. No. 43 of 1941 on the file of the Court of the District Munsif, Vizagapatam, for a declaration of the debt due by him. The said application was filed under Rule 2 of the rules relating to applications to civil courts for scaling down of non -decreed debt. The District Munsif raised the following issues : 1. Whether the petitioner and his vendor are agriculturists? 2. Whether the properties mortgaged in 1873 and those purchased by the petitioner are the same? 3. Whether this petition is in time?
(3.) WHETHER the debt is not liable to be scaled down? And;
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