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IN THE HIGH COURT OF MARAS
Munisami Mudaly
Versus
Abbu Reddy And Ors.
Decided On : 20 January, 1913
Practice under Section 561 of the Code of 1882 - Interpretation of Order XLI, Rule 22 - Precedent in Jadunandan Prosad Singh v. Koer Kalyan Singh - Affirmative answer to the question
Fact of the Case:
The court affirmed the prevailing practice under Section 561 of the Code of 1882 and interpreted Order XLI, Rule 22 in light of the precedent set in Jadunandan Prosad Singh v. Koer Kalyan Singh. The court answered the question in the affirmative.
Finding of the Court:
The court found that the question of consideration had already been decided in previous proceedings and was therefore res judicata. Additionally, the court found no evidence of fraud on the part of the mortgagee or the transferees of the mortgagee.
Issues: Interpretation of Order XLI, Rule 22 - Application of res judicata - Allegations of fraud
Ratio Decidendi: The court relied on the prevailing practice under Section 561 of the Code of 1882 and the precedent set in Jadunandan Prosad Singh v. Koer Kalyan Singh to interpret Order XLI, Rule 22. The court also applied the principle of res judicata and considered the absence of evidence of fraud in reaching its decision.
Final Decision: The court dismissed the memorandum of objections with costs and set the time for redemption at three months from the date of the judgment.
1. It seems to us that the answer to the question which has been referred to us should be in the affirmative.
2. This is in accordance with the practice which appears to have prevailed in this Court under Section 561 of the Code of 1882 and we do not read Order XLI, Rule 22 as indicating that the framers of the rules intended to make it clear that the practice should be otherwise.
3. With all respect to the learned Judges who dealt with the question, in Jadunandan Prosad Singh v. Koer Kalyan Singh (1921) 15 C.I.J. 61at 63 a case which was decided under Order XLI, Rule 22 it seems to us more convenient to follow a fixed rule than to decide the question with reference to the particular facts of the case in which the question is raised
4. We answer the question in the affirmative.
5. The memorandum of objections after the expression of the opinion of Full Bench came on for final hearing before Mr. Justice Bakewell and Mr. Justice Kumarasami Sastri on the 5th November 1914.
JUDGMENT
6. We are both of opinion that the question of consideration has been already decided in proceedings, to which the 7th Respondent was a party : and in which he had the opportunity of arguing the point : and that this question is res judicata and cannot be re-opened upon the hearing of the memorandum of cross-objections. There is no evidence of fraud on the part of the mortgagee, or that the transferees of the mortgagee from him had notice of any fraud.
7. The memorandum of objections is dismissed with costs. The time for redemption will be three months from this day.
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