Vishnu Namboodiri Krishnan Namboodiri vs Oomman Kunjukunju and others

T.S. Krishnamoorthy Iyer, J.—The first counter-petitioner in a proceeding u/s 11 (2) to (5) of Act 31 of 1958 is the appellant, lkka Oommen the husband of the 6th counter-petitioner and the father of the petitioners and counter-petitioners 2 to 5 in the trial court had a leasehold interest in the property. He had executed Ex. P2 possessory mortgage on 21-10-1953 in favour of the first counter-petitioner which is sought to be redeemed by the petition filed u/s 11(2) to (5) of Act 31 of 1958. The petitioners in the trial court had prayed for recovery of possession on their behalf and on behalf of the other co-owners who are counter-petitioners 2 to 6 in the trial court. The claim was granted by the trial court. The appeal filed by the first counter-petitioner was dismissed on two grounds, namely that the appeal before the lower appellate court was defective as counter-petitioners 2 to 6 were not impleaded, and that Ex. P2 is not hit by Section 25 of Act 31 of 1958. In this Court the learned counsel for the appellant raised an additional contention based upon the working of Section 11 of Act 31 of 1958 to the effect that since the petitioners to the petition u/s 11 are not the original mortgagors they are not competent to redeem taking advantage of the concessional provision of Section 11.

In my view the decision of the learned appellate Judge that the appeal filed before him was not competent has to be accepted. It is, no doubt, true that counter-petitioners 2 to 6 were in the position of co-defendants with the first counter-petitioner in the trial court and they remained ex parte. It is not necessary to invoke the principle of res judicata that they should be necessary parties. It is enough even if they are proper parties and there was a conflict of interest between them and the first counter-petitioner and it is necessary to decide the same in order to grant relief to the petitioner. In view of the decision in AIR 1950 17 (Privy Council) the question of res judicata will not be accepted for the reason that counter-petitioners 2 to 6 were ex parte. If really the petitioners in the trial court had been denied the relief under Act 31 of 1958 it was not open to counter-petitioners 2 to 6 to claim the same in another proceeding as the decision against the petitioners in the trial court would be res judicata between the 1st counter-petitioner and counter-petitioners 2 to 6 in another proceeding. Counter petitioners 2 to 6 were thus necessary parties to the appeal in the lower appellate court and the view of the learned Judge that the appeal is defective has only to be upheld. If so, the second appeal is without merit. I dismiss the same. But I make no order as to costs.