Polparkara Manakkal Viroopakshan Nambudripad vs Pulipra Tarwad Karnavan and Manager Chembu Nayar (deceased) and Others

Varadachariar, J.—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 and Others Vs. Vallabha Valia Raja and Others, , 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 : ILR 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.

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.

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 and Others Vs. Vallabha Valia Raja and Others, in view of the special provisions in the Malabar Compensation

for Tenants Improvements Act.

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 ILR (1904) 35 Mad. 42 and Veerappudayan and Another Vs. Muthukarappan Thevan and Others, 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 : ILR 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 : ILR 41 Mad. 641 was based upon, the principle of

Vedapuratti and Others Vs. Vallabha Valia Raja and Others, and on that ground dissented from the earlier decision in Chowakkaran Keloth v.

Karuvalote Parkum (1914) 29 I.C. 559.

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.

As regards the objections based upon the principle of Vedapuratti and Others Vs. Vallabha Valia Raja and Others, 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 : ILR 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 and Others Vs. Vallabha Valia Raja and Others, , 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 and Others Vs. Vallabha Valia Raja and Others, . We are unable to agree with the

contention of the earned Counsel for the respondents that because Vedapuratti and Others Vs. Vallabha Valia Raja and Others, 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 u/s 11 of the CPC from trying the present suit.

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 and Others Vs. Vallabha Valia Raja and Others, is any longer available. The other ground suggested in Vedapuratti and Others Vs.

Vallabha Valia Raja and Others, , 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.

So far as the decision in Nynam Veetil Mayan Kutii v. Valappilakath Kunhammad (1917) 34 M.L.J. 167 : ILR 41 Mad. 641 is based not

merely on the principle of Vedapuratti and Others Vs. Vallabha Valia Raja and Others, 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 : ILR 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.

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.

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.