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Krishnamachariar Vs. Seshadri Aiyangar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1901)11MLJ333
AppellantKrishnamachariar
RespondentSeshadri Aiyangar and ors.
Excerpt:
- - he, however, failed to plead his mortgage, and a decree for sale of the land was passed in which his mortgage right was not saved.1. we think that the plaintiff, when a party to o.s. no. 1228 of 1897 ought to have put forward his mortgage as a defence pro tanto to that suit. had he done so and had his mortgage been admitted or proved, the decree would have saved his rights thereunder. he, however, failed to plead his mortgage, and a decree for sale of the land was passed in which his mortgage right was not saved. he is barred by that decree, and under explanation 2 to section 13, civil procedure code, he cannot now raise a plea which he could and ought to have raised in that suit. the decree of the district judge is, therefore, right, and we dismiss this second appeal with costs.
Judgment:

1. We think that the plaintiff, when a party to O.S. No. 1228 of 1897 ought to have put forward his mortgage as a defence pro tanto to that suit. Had he done so and had his mortgage been admitted or proved, the decree would have saved his rights thereunder. He, however, failed to plead his mortgage, and a decree for sale of the land was passed in which his mortgage right was not saved. He is barred by that decree, and under explanation 2 to Section 13, Civil Procedure Code, he cannot now raise a plea which he could and ought to have raised in that suit. The decree of the District Judge is, therefore, right, and we dismiss this second appeal with costs.


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