1. This case has been posted before this Bench in consequence of a contention raised on behalf of the appellant that the decision of the Full Bench in Vedapuratti v. Vellabha Valiya Raja : (1902)12MLJ128 , should not be followed after the decision of the Privy Council in Raghunath Singh v. Hansraj Kunwar (1934) 67 M.L.J. 813 : L.R. 61 IndAp 362 : I.L.R. 56 All. 561 . The second appeal arises out of a suit instituted by a jenmi for redemption of properties in the possession of the kanomdar. Various objections were raised of which it is necessary to refer only to those raised by issues 1 and 3.
2. The third issue was framed with reference to what happened in O.S. No. 670 of 1923 on the file of the Ponnani Munsiff's Court. That suit was instituted by the assignee of a melcharthdar, who is the seventeenth defendant in the present suit. A decree for possession was passed in that suit conditional on payment of a certain sum of money for compensation for the improvements effected by the tenant. The decree-holder, however, did not care to deposit the amount and take possession. Some months after the date of the decree, he sent a registered notice to the jenmi, which has been marked Ex. VI in the present case, wherein he stated that the suit had been instituted by him really at the instance of the jenmi and he accordingly called upon the jenmi to take steps to deposit the compensation amount and recover possession. We are not in a position to say if and how far the allegations in Ex. VI are true. It is, however, in evidence that the jenmi made two or three applications for extension of time to deposit the compensation amount, as he was under the impression that if he did not do so, his right might once for all be 'extinguished. On two occasions extension seems to have been granted, but on the third occasion his application for further extension of time was rejected by order dated 7th September, 1925.
3. No reasons have been stated for the rejection. It has been contended in the Courts below and before us, on behalf of the kanomdars, that these proceedings taken in O.S. No. 670 of 1923 operate as a bar to the present suit on two grounds : (1) on the general principles laid down by a Full Bench of this Court in Vedapuratti v. Vallabha Valiya Raja : (1902)12MLJ128 in view of the special provisions in the Malabar Compensation for Tenants Improvements Act.
4. It has not been disputed that in the ordinary course the jenmi will not be precluded from instituting a suit merely because he was one of the defendants in a former suit, instituted by the melkanomdar for redemption of the kanom. The Courts below recognise that the decisions in Raman Nambudri v. Achutha Pishurodi I.L.R. (1904) 35 Mad. 42 and Veerappudayan v. Muthukaruppa Thevan : (1913)24MLJ534 are against any such contention. But it has been argued that because the present plaintiff applied to the Court in O.S. No. 670 of 1923 for extension of time to pay the money and extension was granted on two occasions, he must be held to have put himself in the position of the plaintiff in that suit and therefore to be governed by the principle laid down in Nynam Veetil Mayan Kutti v. Valappilakath Kunhammad (1917) 34 M.L.J. 167 : I.L.R. 41 Mad. 641 and that if he allowed his remedy by way of execution to become barred, he would riot be entitled to bring a second suit. The decision in Nynam Veetil Mayan Kutti v. Valappilakath Kunhammad (1917) 34 M.L.J. 167 : I.L.R. 41 Mad. 641 was based upon, the principle of Vedapuratti v. Vallabha Valiya Raja : (1902)12MLJ128 and on that ground dissented from the earlier decision in Chowakkaran Keloth v. Karuvalote Parkum (1914) 29 I.C. 559.
5. We are unable to agree with the contention that merely because the jenmi applied for extension of time in O.S. No. 670 of 1923, he must be precluded from maintaining a second suit. It does not appear from the record that his right to execute the decree in O.S. No. 670 of 1923 was adjudicated upon by the Court. The mere fact that he expected that if he deposited the money he might be able to take possession, will not by itself suffice to create in him a disability which would not otherwise arise under the law. Nor do we think that the statements made in Ex. VI by the plaintiff in O.S. No. 670 of 1923 can operate as a legal assignment to the jenmi of the decree obtained by the plaintiff in O.S. No. 670 of 1923. It has not been contended-and Ex. VI cannot be regarded as evidence-that the melcharth itself was a benami transaction and that the jenmi was in substance and truth the plaintiff in the former litigation.
6. As regards the objections based upon the principle of Vedapuratti v. Vallabha Valiya Raja : (1902)12MLJ128 that even assuming that after a decree for redemption the relationship of mortgagor and mortgagee continues, a second suit for redemption will nevertheless not lie, it seems to us that that view can no longer be maintained in the face of the decision of the Privy Council in Raghunath Singh v. Hansraj Kunwar (1934) 67 M.L.J. 813 : L.R. 61 IndAp 362 : I.L.R. 56 All. 561 . Their Lordships point out that unless as contemplated by Section 60 of the Transfer of Property Act the right of redemption has been extinguished in one of the modes contemplated by the statute, the mere fact, that a decree for redemption obtained on a former occasion has not been executed, will not prevent the mortgagor fom maintaining a subsequent suit for redemption. The judgments in Vedapuratti v. Vallabha Valiya Raja : (1902)12MLJ128 , themselves refer to the conflict of judicial opinion on the point that existed prior thereto and the view now laid down by their Lordships of the Judicial Committee seems rather to approve of the opinion which the Full Bench overruled in Vedapuratti Vallabha Valiya Raja : (1902)12MLJ128 . We are unable to agree with the contention of the earned Counsel for the respondents that because Vedapuratti v. Vallabha Valiya Raja : (1902)12MLJ128 has not been in terms overruled by their Lordships, it must still be taken to be good law. So far as we can gather from the report the Full Bench decision seems to have been cited before their Lordships. In any event the way their Lordships stated the points for consideration clearly indicates that the ground of res judicata on which the Full Bench rested their conclusion was intended to be dealt with by their Lordships. At the top of page 567 they observe:
If the appellants fail to establish under their third point that the old decree extinguished the right to redeem, there is, in their. Lordships' opinion no ground for saying that the old decree operated by way of res judicata so as to prevent the Courts under Section 11 of the Code of Civil Procedure from trying the present suit.
7. After this expression of opinion by their Lordships, it is not possible to maintain that the ground of decision adopted by the Full Bench in Vedapuratti v. Vallabha Valiya Raja : (1902)12MLJ128 is any longer available. The other ground suggested in Vedapuratti v. Vallabha Valiya Raja : (1902)12MLJ128 , viz., the bar by lis pendens will not avail when by reason of the bar of limitation or from other causes relief can no longer be had by proceedings taken in the former suit.
8. So far as the decision in Nynam Veetil Mayan Kutii v. Valappilakath Kunhammad (1917) 34 M.L.J. 167 : I.L.R. 41 Mad. 641 is based not merely on the principle of Vedapuratti v. Vallabha Valiya Raja : (1902)12MLJ128 but upon the special provisions of the Malabar Compensation for Tenants Improvements Act which do not contemplate a preliminary decree and a final decree and which contain indications in Section 6 that the right conferred by the decree should be worked out only by proceedings in execution, it may be a question how far that view can be maintained after the judgment in Raghunath Singh v. Hansraj Kunwar (1934) 67 M.L.J. 813 : L.R. 61 IndAp 362 : I.L.R. 56 All. 561 , but it is not necessary for us to decide that point in this case because, as we have already observed,, the present plaintiff was not the plaintiff in the former suit and cannot therefore be held to be precluded from maintaining the present suit.
9. As regards the objection raised by the first issue, namely, that during the period of the melcharth the plaintiff has no right to maintain the present suit, there are two answers to it, (1) that even that period has expired during the pendency of the appeal and (2) apart from that, on the principle recognised in Raman Nambudri v. Achutha Pishurodi I.L.R.(1904) Mad. 42, the jenmi will be entitled to maintain the present suit, because the melcharthdar has precluded himself from recovering possession in pursuance of that decree.
10. The result is that the second appeal is allowed and the decree of the District Munsiff restored with costs here and in the Lower Appellate Court.