A decree against a defendant is not a preliminary decree and the rights declared under it have become final in the absence of an appeal by the defendant.

SADASIVAM, J.:- Appellants in App. No.684 of 1963 are defendants 40 to 45 in O.S.64 of 1954 on the file of the Subordinate Judge's Court, Padmanabhapuram. Appellant in App. No.693 of 1963 is the 24th defendant in the same suit. These appeals have been preferred against the final decree and order in I.A. 135 of 1963 in O.S. No.64 of 1954, on the file of the Subordinate Judge's Court, Padmanabhapuram.

2. The only contention urged by the appellants in App. No.684 of 1963 is that the suit is barred by res judicata in respect of the claim made against them. The plaintiff's in O.S.64 of 1954, on the file of the lower court, filed the suit for declaration of their title to the suit properties and for recovery of possession of the same after setting aside certain alienations. The appellants in App. No.684 of 1963 on the file of the lower court are interested only in plaint Items 53 to 57. These items of properties belonged to one Chemmanthitta Tarwad and the members of that tarwad mortgaged these properties to the father of the 40th defendant under the original of Ex.XVII dated 29-9-1059, M.E. The father of the 41st defendant and the father of the defendants 42 to 45 were the brothers of the 40th defendant. The trial court upheld the plea of defendants 40 to 45 that the suit against them was barred by limitation. But on appeal preferred by the plaintiff's to this court, it was held that the sub-mortgage Ex.F executed by the mortgagee under Ex.XVII saved the plaintiffs' claim from the bar of limitation. In fact, the 40th defendant examined as D.W.8 in the suit, gave evidence that his father executed the sub-mortgage G.F. with regard to some of the properties covered by the mortgage Ex.XVII and this court relied on the said evidence. This court passed a preliminary decree for redemption of plaint Items 53 to 57 covered by Ex.XVII, but made it subject to the other defences that might be put forward by defendants 40 to 45.

3. The plea of res judicata is based on the following facts. The third defendant Ulakan Pillai filed O.S. No.454 of 1123 M.E. on the file of the District Munsif Court, Padmanabhapuram, against defendants 40 to 45 in this suit for redemption of the mortgage in respect of the present suit Items 53 to 57. But he was unsuccessful both in the trial court, as well as in his appeal A.S. No.656 of 1951 on the file of the Sub-Court, Padmanabhapuram. Ulakan Pillai died during the pendency of the appeal A.S. No.656 of 1951, on the file of the Subordinate Judge's Court of Padmanabhapuram and the present plaintiff's were brought on record as his legal representatives. Though the present plaintiff's preferred a second appeal to this Court, they withdrew the same. The lower court has held that the title of the plaintiff's in the present suit is not based on the title of Ulakan Pillai, who filed the suit O.S. No.454 of 1123 M.E. on the file of the District Munsif's Court, Padmanabhapuram, and hence the decision in A.S. No.656 of 1951 on the file of the Sub-Court, Padmanabhapuram, cannot operate as res judicata.

4. It is clear from the decision in A.S.656 of 1951, on the file of the Subordinate Judge's Court, Padmanabhapuram, that the Subordinate Judge agreed with the trial court that the third defendant Ulakan Pillai did not prove his title to the properties mortgaged to Arulanandam, the father

of the 40th defendant and the grandfather of defendants 41 to 45 in the present suit. It proceeded also to rely on the dismissal of O.S.64 of 1954 on the file of the Subordinate Judge's Court, Padmanabhapuram. But the dismissal was on the ground of limitation, which was, however, set aside by this court. It should be noted that the plaintiffs in O.S.64 of 1954 on the file of the Subordinate Judge's Court, Padmanabhapuram, did not claim title to the suit properties from Ulakan Pillai, father of the first plaintiff and grandfather of plaintiff's 2 and 3. Madhavan Pillai, the brother of Ulakan Pillai, got title to the suit items 12 to 92 under