Decided on January 18,1952



Venkatarama Aiyar, J. - (1.) This is an appeal by the plaintiff against the judgment and decree of the Subordinate Judge of Palghat dismissing O. S. No. 49 of 1945 which was an action by her to enforce a charge. The facts are not in dispute. One Bava Kutti died leaving behind a son Koyathan and two daughters, Bee Pathurnma and Sayeed Mal Umma. After the death of Koyathan on 18-10-1929 his sister Bee Pathumma filed O. S. No. 36 of 1930 on the file of the Sub Court, Ottapaiam for partition of her share in the estate. This suit was transferred to the Sub Court, Palghat and was there numbered as O. S, No. 75 of 1932. The appellant Ammenumma is one of the daughters of Koyathan and was the 3rd defendant in that suit. On 23-8-1933 all the parties entered into a 'razinama', Ex. P. 1, and a compromise decree was passed in terms thereof on 4-9-1933, Ex. P. 6. This decree provides that Bee Pathumma was to take over the share of Ammenumma & pay her in lieu thereof a sum of Rs. 7333-5-4 within one month and the payment of this amount was charged on the suit properties. The amount not having been paid, Ammenumma filed O. S. No. 45 of 1938 on the file of the Sub Court, Palghat for the recovery of a sum of Rs. 10100 as due to her for principal and interest under the decree by enforcement of the charge. The suit was decreed after contest and a preliminary decree was passed on 1212- 1939, Ex. P. 2(a). Under this decree the amount due to the plaintiff as on 12-12-1939 was declared to be Rs. 11804-4-0. Clause 2 provided that the 1st defendant Bee Pathumma was to pay this amount with subsequent interest into Court on or before 12-2-1940 and clause 3 directed that in default of payment the plaintiff was to apply for a final decree for sale of the property. Clause 4 provided that the sale proceeds should be applied in payment of expenses, cost and amounts due to the plaintiff; the balance if any, being payable to the 1st defendant. The other clauses are not material for the purpose of this case. It may be mentioned that the decree does not contain the usual clause for redemption that on payment of the mortgage amount the mortgagee shall deliver the title deeds and if necessary retransfer the property to the mortgagor and put him in possession of the same. No amount was paid by the 1st defendant and the plaintiff filed I. A. No. 100 of 1941 for the passing of a final decree. That application was dismissed as fresh notice to the defendants was not taken. I. A. No. 843 of 1943 was filed for reviewing the order in I. A. No. 100 of 1941. That was also dismissed on 25-8-1945; vide Ex. P. 5. It is after this that the plaintiff has instituted the present suit on 3-10-1945 for recovery of the balance amount due under the 'razinama1 decree in O. S. No. 75 of 1932, by enforcing the charge created under that decree by sale of the suit property. The plaintiff has given credit for a sum of Rs. 2516-6-0 received by her under the decree, Ammenumma vs. Chelampiriyarath Beeviamma and Ors. (18.01.1952 -MADHC) Page 3 of 14 piriyarath Beeviamma and Ors. (18.01.1952 -MADHC) Page 3 of 14 Ex. P. 2(a) and also for certain other amounts and the balance claimed as due on the date of the suit is Rs. 10733-2-8. Giving up Rs. 233-2-8 out of this, the claim is made for Rs. 10500 with subsequent interest and costs.
(2.) The 1st defendant Bee Pathumma contested the suit on the ground that it was barred by the rule of 'res judicata' by reason of the proceedings in O. S. No. 45 of 1938 and that it was barred by limitation. Sayeed Mal Umma, the sister of the 1st defendant having died prior to the suit, defendants 4 to 7 were impleaded as her legal representatives. They contended that items 36 to 46 in the plaint schedule were allotted to Sayeed Mal Umma free of charge and that the plaintiff had no right to proceed against them. They also put forward various other claims. The 1st defendant having died pending the suit, defendants 8 to 13 were brought on record as her legal representatives. The suit was heard by the Subordinate Judge of Palghat who held that the present suit was barred by reason of the decree in O. S. No. 45 of 1938 which was for enforcement of the same charge and between the same parties, that the only right of the plaintiff was to pursue her remedies under that decree and that a second suit was not maintainable under Section 11 C. P. C. He also held that as the amount was payable under the compromise decree, Ex. P. 6, on 4-10-1933, the suit which was instituted on 3-10-1945 was within time and that there was no bar of limitation. With reference to the pleas put forward by defendants 4 to 7 he held that items 36 to 46 were not liable for the suit claim and that the defendants were not entitled to any other relief. In the result in view of his finding that the suit was barred by the rule of res judicata, he dismissed it with costs. It is against this decree that the plaintiff has preferred this appeal.
(3.) On behalf of the appellant it was argued by Mr. K. Kuttikrishna Menon that as the law is now well settled that a second suit for redemption by a mortgagor is maintainable subject only to the conditions mentioned in S. 60 of the Transfer of Property Act, it should likewise be held that a second suit for sale by a mortgagee is maintainable subject only to the conditions mentioned in Section 67 of the Transfer of Property Act and that as there has been neither a decree for redemption nor any payment or deposit of the mortgage amount as provided in that section, the mortgagee has a right to bring the present action for sale. No authority directly dealing with this question has been cited to us, and as the respondents were not represented by counsel, in view of the importance of the question, we requested Mr. N. Sivaramakrishna Iyer a "senior advocate of this court to assist as 'amicus curiae' and we are indebted to him for his learned arguments.;

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