Munisami Mudaly Vs. Abbu Reddy On 20 January, 1913

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Munisami Mudaly v. Abbu Reddy

Munisami Mudaly
v.
Abbu Reddy

(High Court Of Judicature At Madras)

No | 20-01-1913

[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 191

4.

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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Eq Citation

(1914) 27 MLJ 740

(1915) ILR 38 MAD 705

1915 MWN 45

27 IND. CAS. 323

LQ/MadHC/1913/21

HeadNote

Limitation Act, 1908 — S. 34 — Res judicata — Question of consideration already decided in proceedings, to which 7th respondent was a party and in which he had opportunity of arguing the point — Held, is res judicata and cannot be re-opened upon hearing of memorandum of cross-objections — Evidence Act, 1872 — S. 11 — Res judicata — S. 34, Limitation Act, 1908