Decided on August 20,1963



Manohar Pershad, J. - (1.) This second appeal on behalf of defendants 1 and 2 arises out of O. S. No. 108 of 1956, on the file of the District Munsif Court, Kurnool, which was instituted by the 1st defendant herein for the recovery of a sum of Rs. 968-10-3 representing the principal and interest due under a mortgage deed dated 2-4-1941.
(2.) The case of the 1st respondent was that one Bogam Alampur Subbamma borrowed Rs. 500.00 from the 3rd defendant Bogam Gudur Giremma and mortgaged her properties by a registered mortgage deed dated 2-4-1941. The mortgage was redeemable within one year. The 3rd defendant on the basis of the mortgage filed O. S. No. 215 of 1349 for the recovery of the mortgage debt and obtained a preliminary decree. Subsequently, she transferred the mortgage decree in favour of the plaintiff under Ex. A-5 dated 3-11-1951. After the said transfer the plaintiff filed I. A. No. 661 of 1953 for continuing the proceedings and also I. A. No. 662 of 1953 for passing of a final decree. Both these I.As. were dismissed. According to the plaintiff as no final decree was passed thereafter and the mortgaged properties were not brought to sale and the preliminary decree having become un-executable, he (plaintiff) was entitled to file the suit on the foot of the mortgage". The appellants in their written statement pleaded ignorance to the transfer made to the plaintiff by the 3rd defendant. They inter alia denied that they had acknowledged in the previous written statement their liability to discharge the mortgage debt. Legal objections were also taken that the suit was barred by time, that the preliminary decree; In O. S. No. 215 of 1949 superseded the suit mortgage bond and hence no second suit can be filed on that bond, and that the dismissal of 1. As. 661 of 1953 and 662 of 1953 operated as res judicata against the plaintiff. An alternative plea was also taken that if the suit mortgage was true, it has been discharged and they were not liable to pay any debt. The 3rd defendant while admitting the transfer in favour of the plaintiff stated that he was not a necessary party to the suit.
(3.) The learned District Munsif found that the mortgage-bond dated 2-4-1941 was true, valid and supported by consideration. It is also found that the plaintiff was a transferee of the suit mortgage and the preliminary decree and was entitled to file the suit on the basis of the mortgage. On the issue as to whether the suit was barred in view of the order in I. As. 661 and 662 of 1953, and whether final decree proceedings in O. S. No. 215 of 1949 were a part of the suit. It was not found a bar. In the result, the trial Court passed a preliminary decree in favour of the plaintiff for Rs. 841-10-3 with interest. Against the decree and judgment of the learned District Munsif, defendants I and 2 went in appeal to the Court of the additional Subordinate Judge, Kurnool. The appellate Court agreed with the findings of the trial Court and dismissed the appeal. Hence this second appeal on behalf of defendants 1 and 2.;

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