1. This appeal relates to certain property held by the defendant under a marupat of 1889 executed by his predecessor-in-title in favour of the plaintiff. In 1913 plaintiff granted a melcharth over the same property. In 1915 a suit for eviction was filed by both plaintiff and melcharthdar in which a decree was passed in favour of the latter on 12th January 1916, that if within three years he paid into Court the value of defendant's improvements the defendant should surrender possession of the property to him. Such payment was never made and defendant remained in possession. In 1929 the present suit was filed by plaintiff, the jenmi, to evict the defendant and the main question in issue was whether this suit was barred by reason of the previous decree. The first Court held that the suit was barred, but on appeal the learned District Judge of North Malabar held that it was not, and the usual preliminary decree for payment of the value of improvements has been passed. Defendant appeals.
2. There is no reported authority dealing with precisely similar facts, but my attention has been drawn to the judgment in A.A.O. No. 317 of 1916 where the facts were similar and it has been held that in such circumstances the jenmi has lost his right to redeem. That judgment is based upon the facts that even though the jenmi in the former suit obtained no decree personally in his own favour he was a plaintiff and was bound by the decree. The Full Bench ruling in Vedapurathi v. Vallabha Valiya Raja (1902) 25 Mad 300 therefore applies to him as well as to the melcharthdar, and inasmuch as the melcharthdar failed to execute his decree, the jenmi also has lost the right to redeem. It seems to me rather doubtful whether Vedapurathi v. Vallabha Valiya Raja (1902) 25 Mad 300, which depends upon the principle of res judicata, can be reasonably applied against a party, who, though a plaintiff in name, obtains no decree in his own favour and cannot himself execute the decree which is obtained. But it is unnecessary to discuss this point further, as the learned advocate for the respondent has quoted a recent ruling of the Privy Council reported in Raghunath Singh v. Hansraj Kunwar , which in my opinion overrules Vedapurathi v. Vallabha Valiya Raja, (1902) 25 Mad 300 itself. It is there pointed out that the principle of res judicata does not apply to such cases and that plaintiff's right to redeem is barred only if the decree in the former suit declares it to be so. It was further contended in this appeal that plaintiff's suit was barred by limitation. Two decisions of this Court, Kumatha Vittil Kunji Kuthalai Haji v. Rev. Antonio Goveas (1913) MWN 339 and Eronna Menon v. Sankunni Menon AIR 1918 Mad 887 clearly negative this argument. The appeal fails and is dismissed with costs. Leave to appeal granted.