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Uttaravelli Peda Appala Naidu and anr. Vs. Uttaravelli Appala Naidu and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtChennai
Decided On
Reported inAIR1925Mad1148; 87Ind.Cas.711
AppellantUttaravelli Peda Appala Naidu and anr.
RespondentUttaravelli Appala Naidu and ors.
Cases ReferredRam Chander v. Kondo
Excerpt:
- .....the ground that it is barred by res judicata and : if, the plaint property was not included in the suit property in o.s. no. 296 of 1913, it ,is barred by reason of section 47, civil procedure code. mr. suryanarayana relies upon the decision in ram chander v. kondo (1900) 22 all. 442 in which the learned judges held that if property was wrongly included in, the mortgage suit and brought to sale, a separate suit will be for a declaration that such property was not sold in execution of the mortgagee decree. with all respect to the learned, judges, i am unable to agree with the reasoning in that case. the question ought to have been raised by the plaintiffs whether the plaint properties were or were not being included in the mortgage in favour of the 7th defendant. they failed to do so, and.....
Judgment:

Devadoss, J.

1. The only point argued in this second appeal is that the plaint property was not included in the mortgage-deed executed by the 7th defendant in favour of the father of the plaintiffs. The plaint property, according to the evidence of the 2nd plaintiff, was taken delivery of by the 7th defendant. Evidently, the plaint property was included in the schedule attached to the plaint filed by the 7th defendant for redemption, i.e., O.S. No. 296 of 1913. The plaintiffs did not raise any objection as to the items not included in the mortgage. They should have objected to the correctness of the plaint schedule and should have contended that some of the items included in the schedule were not mortgaged by the 7th defendant. The plaintiffs, owing to some reason or other did not do so, and the plaint property was treated as one of the properties covered by the mortgage and 7th defendant got possession of it under the redemption decree. The plaintiff now sues for recovery of the plaint property which according on him was not included in the, mortgage-deed. The Subordinate Judge that dismissed the plaintiff's appeal on the ground that it is barred by res judicata and : if, the plaint property was not included in the suit property in O.S. No. 296 of 1913, it ,is barred by reason of Section 47, Civil Procedure Code. Mr. Suryanarayana relies upon the decision in Ram Chander v. Kondo (1900) 22 All. 442 in which the learned Judges held that if property was wrongly included in, the mortgage suit and brought to sale, a separate suit will be for a declaration that such property was not sold in execution of the mortgagee decree. With all respect to the learned, Judges, I am unable to agree with the reasoning in that case. The question ought to have been raised by the plaintiffs whether the plaint properties were or were not being included in the mortgage in favour of the 7th defendant. They failed to do so, and the redemption decree was passed in respect of these very items which are now claimed by the plaintiffs as not having been included in the mortgage. The point ought to have been raised in the other case and not having been raised it cannot be raised now. I think Section 11, Clause 4 is certainly a bar to the plaintiffs' suit. The second appeal fails and is dismissed without costs as the respondent does not appear.


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