Applicability of bar of res judicata.

This second appeal arises out of O.S. No. 68 of 1947 on the file of the District Munsif’s Court, Vizagapatam, a suit filed by the appellant to direct the defendants to put him in possession of the plaint schedule property and for a declaration that the entire amount due under the usufructuary mortgage dated 22nd July, 1873, was completely discharged.

To appreciate the contentions of the parties, it is enough to state the relevant facts. The plaintiff, alleging to be the owner of the equity of redemption and also the purchaser of two-thirds of the mortgage interest in the aforesaid mortgage filed the said suit for redemption and for possession of the plaint schedule properties. The plaintiff’s case is that he is an agriculturist and that if the provisions of the Madras Agriculturists Relief Act are applied to the debt, the debt would be discharged. The defendants contended, inter alia, that the plaintiff is not an agriculturist and that the suit is premature. They also pleaded that the plaintiff is precluded from raising the plea that he is an agriculturist by reason of the order in the application taken by him under the provisions of the Madras Agriculturists’ Relief Act. The learned District Munsif held that the decision in the earlier proceedings would not be a bar for the maintainability of the suit as, according to him the plaintiff’s right to file a suit was expressly reserved. The learned District Munsif and the learned District Judge in appeal held that the order in the earlier proceedings would operate as res judicata. They also held that the suit would be premature as, if the debt was not scaled down, the mortgage debt Would not be discharged. The plaintiff preferred the above second appeal.

Mr. Ramamurthi, learned counsel for the appellant, contended before me that the view of the Courts below on the question of res judicata is unsound. To appreciate his contention, it is necessary to notice the scope of the previous proceedings and the order made therein. As aforesaid, the plaintiff filed O.P. No. 43 of 1941 on the file of the Court of the District Munsif, Vizagapatam, for a declaration of the debt due by him. The said application was filed under rule 2 of the rules relating to applications to Civil Courts for scaling down of non-decreed debt. The District Munsif raised the following issues:

(1) Whether the petitioner and his vendor are agriculturists;

(2) Whether the properties mortgaged in 1873 and those purchased by the petitioner are the same?

(3) Whether this petition is in time?

(4) Whether the debt is not liable to be scaled down; and

(5) If the debt is liable to be scaled down, what amount, if any, is due thereon?

The learned District Munsif held on issue 1 that the petitioner and his vendor were agriculturists, on issue 2 that the properties mortgaged in 1873 and those purchased by the petitioner are the same, on issue 3 that the petition was in time, on issue 4 that the debt was liable to be scaled down and on issue 5 that the amount due to the respondent was only a sum of Rs. 112-4-0 with interest at 6¼ per cent. per annum from 1st October, 1937, till payment. The respondent preferred an appeal to the District Court, Vizagapatam. The learned District Judge definitely held that he was not prepared to hold on the evidence that the petitioner was an agriculturist entitled to present the petition and expressed the view that on that short ground the petition should have been dismissed. In regard to the other questions raised in that petition he also expressed the view that that matter could only be decided in a regular suit. The appellant preferred an appeal against the order of the District Judge to the High Court in A.A.A.O. No. 361 of 1943. Wadsworth, J., dismissed the appeal. But in dismissing the appeal he observed as follows:

“The appellant has not satisfied the lower appellate Court either that he is an agriculturist or that he is the owner of the whole of the mortgagor’s interest. It does not appear