Udamanthala Nalupuratatil Ibraine vs Parameswara Bavannavar and Others

Madhavan Nair, J.—The only question for discussion in this second appeal is whether the plaintiff''s suit is barred by limitation. The suit is for

the redemption of a mortgage of the year 1837. It would admittedly be barred at the time when the suit was instituted, if there was no valid

acknowledgment admitting the mortgage by the defendants. The acknowledgment relied upon is contained in Ex. C, which is a certified copy of the

judgment in a suit to which the original mortgagees and the mortgagors were parties. The pleadings set forth in that judgment do refer to the

mortgage of the year 1837. It is argued by Mr. Adiga for the appellant that Ex. C is not admissible in evidence on the strength of the Full Bench

decision in Seethapati Rao Dora v. Venkanna Dora AIR 1922 Mad. 71. With reference to this argument, it is relevant to point out that this case

came on a prior occasion before the High Court when it was remanded for a decision whether the original mortgagee was the karnavan or only a

junior member of the first defendants'' tarwad and whether the person who acknowledged the mortgage was its karnavan at the time the

acknowledgment was made. Unless the High Court held that Ex. C was admissible in evidence, it would never have remanded the case for a

decision on the question just mentioned. A perusal of the remand order makes this point clear. In the appellate judgment now before me I find a

statement by the learned Subordinate Judge that ""it has not been argued before me that abstracts of pleadings contained in the judgments are not

admissible in evidence,"" probably because the point must hive been decided by the High Court against; the plaintiff-appellant at the time of the

remand order. I, therefore, do not think that it is open to the plaintiff-appellant now to raise that question once again in this second appeal. The

reason why he raises that question now is because in Seethapati Rao Dora v. Venkanna Dora AIR 1922 Mad. 71 a decision which held that a

recital in a judgment not inter partes of a relevant fact is not admissible in evidence u/s 35 of the Indian Evidence Act, there are certain

observations in the concluding portion of the judgment which may make it appear that a recital in a judgment inter partes of a relevant fact may not

be admissible in evidence. But this uncertain expression of opinion is a mere obiter dictum, and the learned Judges themselves say that it is

unnecessary to consider the point in the reference before them. The decision in Fatimatul Nissa Begum v. Sundar Das [1900] 27 Cal. 1004 would

seem to show that decrees that recite the pleadings might be admitted in evidence. But, as I have said, the question was not considered by the

learned Judges who decided the Full Bench case as it was not before them; and as it is not now open to the appellant''s Counsel to raise that

question afresh in this second appeal, I dismiss it with costs.