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Vithal Ramchandra Vs. Sitabai Sitaram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 164 of 1911
Judge
Reported in(1912)14BOMLR579
AppellantVithal Ramchandra
RespondentSitabai Sitaram
Excerpt:
.....that the amount was rs. 350. in a subsequent suit to foreclose the mortgage, brought under section 3, clause(y)of the dekkhnn agriculturists relief act, 1879, relief was granted on the basis that the mortgage amount was rs. 400. it was contended that the finding in the first suit as to the principal amount operated as resjudicata :-;that the dekkhan agriculturists relief act was in relief of a certain class of his majesty's subjects, and therefore the finding in the previous suit could not affect and be res judicata in the second suit, which was of a different character given to it by a special law unless the previous suit also could fall within the class of suits to which that law applied. - - 9 in appeal, is clearly unsustainable, because the record shows that that document had..........had been brought by the mortgagee for interest due the principal amount for certain years. the present suit brought on the mortgage contract, and the plaintiff prays ft relief by way of sale of the mortgaged property. being there fore a suit for sale it falls within section 3, clause (y). and section 12 of the dekkhan agriculturists relief act directs the court in such suit to go into the history of the transaction between the parties from the date of the transaction, notwithstanding any admission that may have been made by either party. the act is in relief of a certain class of his majesty's subjects, are therefore, the finding in the previous suit could not affect are be rest judicata in the present suit, which is of a different character given to it by a special law, unless the.....
Judgment:

N.G. Chandavarkar, Kt. J.

1. We must confirm the decree with costs. The objection raised to the admission, by the Court of appeal, of the receipt, Ext. 9 in appeal, is clearly unsustainable, because the record shows that that document had been produced in the Court of first instance, that its genuineness was admitted by the present appellant, but that the Court for some reason or other omitted to make it a part of the evidence. The lower appellate Court, therefore, was right in admitting it in evidence formally. It is urged, however, that the lower appellate Court's finding that the principal sum advanced was Rs. 400 and not Rs. 350 is bad in law because the question as to the amount of the principal is rest judicata by reason of a finding in a previous suit. That previous suit was, however, one which had been brought by the mortgagee for interest due the principal amount for certain years. The present suit brought on the mortgage contract, and the plaintiff prays ft relief by way of sale of the mortgaged property. Being there fore a suit for sale it falls within Section 3, Clause (y). And Section 12 of the Dekkhan Agriculturists Relief Act directs the Court in such suit to go into the history of the transaction between the parties from the date of the transaction, notwithstanding any admission that may have been made by either party. THE Act is in relief of a certain class of His Majesty's subjects, are therefore, the finding in the previous suit could not affect are be rest judicata in the present suit, which is of a different character given to it by a special law, unless the previous start also could fall within the class of suits to which that la applies.

2. For these reasons the decree must be confirmed with costs.


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