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Bhau Balaji Vs. Hari Nilkanthrav - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom377
AppellantBhau Balaji
RespondentHari Nilkanthrav
Excerpt:
practice - relinquishment of portion of claim--res judicata--dekkhan agriculturists' relief act xvii of 1879--mortgagor--mortgagee--suit for account merely--subsequent suit for possession--code of civil procedure, act xiv of 1882, section 13 and 43. - - 1. it is objected, and we think the objection is well founded, that this claim to possession is res judicata......it has 'been 'held by this court under the dekkhan agriculturists' relief act, as it stood before it was altered by act xxii of 1882, in the case of hari v. lakhsman i.l.r. 5 bom. 614 that an agriculturist mortgagor had no right to sue his mortgagee in a mere action for an account: in other words, that he must, when asking for an account, add a prayer for redemption; and it follows, therefore, that where there has been, a suit for an account, a subsequent suit, for recovery of possession on payment of the money declared due, is barred, under either section. 13 or section 43 of the civil procedure code. we have, consequently, no alternative but to reverse the decrees of the courts below, and reject the claim, with costs. what the effect of the decree of the 14th january 1881, may be, it.....
Judgment:

Kemball, J.

1. It is objected, and we think the objection is well founded, that this claim to possession is res judicata. It has 'been 'held by this Court under the Dekkhan Agriculturists' Relief Act, as it stood before it was altered by Act XXII of 1882, in the case of Hari v. Lakhsman I.L.R. 5 Bom. 614 that an agriculturist mortgagor had no right to sue his mortgagee in a mere action for an account: in other words, that he must, when asking for an account, add a prayer for redemption; and it follows, therefore, that where there has been, a suit for an account, a subsequent suit, for recovery of possession on payment of the money declared due, is barred, under either section. 13 or Section 43 of the Civil Procedure Code. We have, consequently, no alternative but to reverse the decrees of the Courts below, and reject the claim, with costs. What the effect of the decree of the 14th January 1881, may be, it is not for us to decide now; but, supposing that the decree-holder is not able to get possession under it, it might be that he could get the decree amended so as to give him that power.


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