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Ram Sahai Vs. Musammat Ahmadi Begam and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.53
AppellantRam Sahai
RespondentMusammat Ahmadi Begam and ors.
Cases ReferredThrikaikat Modathil Raman v. Thiruthiyil Krishnen Nair
Excerpt:
civil procedure code (act v of 1908), section 11, order ii, rule 2 - first redemption suit dismissed on the ground of mortgage being found of a different date--second suit for redemption of mortgage of proper date--res judicata. - - r). this last ruling is clearly against the appellant and supports the view of our learned colleague......set forth in the judgment of our learned colleague. it is contended that the dismissal of the suit brought by the predecessor in title of the plaintiffs in 1881 is a bar to the present suit, which is one for the redemption of a mortgage of 1858. the former suit was brought for the redemption of an oral mortgage alleged to have been made at some time between 1859 and 1860. it was found in that suit that no such mortgage existed and the claim was accordingly dismissed. it was further found that the property in question was held by the defendant under a mortgage of 1858. it is this mortgage of 1858 which the plaintiffs now seek to redeem. we agree with our learned colleague that the second suit is not barred by the provisions of sections 13 and 43 of act xiv of 1882 or of section 11.....
Judgment:

1. This is an appeal under the Letters Patent from an order of remand made by a learned Judge of this Court. The facts of the case are fully set forth in the judgment of our learned colleague. It is contended that the dismissal of the suit brought by the predecessor in title of the plaintiffs in 1881 is a bar to the present suit, which is one for the redemption of a mortgage of 1858. The former suit was brought for the redemption of an oral mortgage alleged to have been made at some time between 1859 and 1860. It was found in that suit that no such mortgage existed and the claim was accordingly dismissed. It was further found that the property in question was held by the defendant under a mortgage of 1858. It is this mortgage of 1858 which the plaintiffs now seek to redeem. We agree with our learned colleague that the second suit is not barred by the provisions of Sections 13 and 43 of Act XIV of 1882 or of Section 11 and Order II, Rule 2 of the present Code. The learned Counsel for the appellant referred us to the case of Rangasami Pillai v. Krishna Pillai 22 M. 259. That case has been overruled by the later Full Bench ruling of the same Court in Thrikaikat Modathil Raman v. Thiruthiyil Krishnen Nair 29 M. 153 : 16 M.L.J. 48 (F. R). This last ruling is clearly against the appellant and supports the view of our learned colleague. We dismiss the appeal with costs.


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