K.MUTHUSWAMI GOUNDER versus N. PALANIAPPA GOUNDER

K.MUTHUSWAMI GOUNDER versus N. PALANIAPPA GOUNDER

The deed (Ex. A6) executed by Ganesan on 12.4.1950 did not create a charge over the property but was merely an undertaking not to alienate; thus, the appellant did not acquire rights as a puisne mortgagee. The High Court appropriately exercised discretion under Order XLI Rule 33 CPC to dismiss the suit entirely in the circumstances. Findings in favour of the appellant by trial and first appellate court do not operate as res judicata where appeals are pending and the whole matter is before the appellate court.

Parties
Appellant: K. Muthuswami Gounder; Respondent: N. Palaniappa Gounder
Jurisdiction
India
Judgment Date
31 August 1998
Procedural Posture
Civil Appeal / Supreme Court Appeals Against Judgment and Order Dated 3.8.76 of the Madras High Court in S.a. No. 658 of 1973 and 710 of 1973
Outcome
Appeals dismissed.
Legal Topics
Order XLI Rule 33 CPC, Res Judicata, Charge Over Property, Mortgage, Auction Sale Rights
Civil Procedure Property Law Order XLI Rule 33 CPC Res Judicata Charge Over Property Mortgage Auction Sale Rights

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Parties

K. Muthuswami Gounder

Appellant

N. Palaniappa Gounder

Respondent

Procedural Posture

Civil Appeal / Supreme Court Appeals Against Judgment and Order Dated 3.8.76 of the Madras High Court in S.a. No. 658 of 1973 and 710 of 1973

Legal Issues

  1. 1 Whether the deed (Ex. A6) executed for raising attachment creates a charge in favour of the appellant or is merely an undertaking
  2. 2 Whether the High Court could, under Order XLI Rule 33 CPC, dismiss the suit in its entirety despite part decree in favour of appellant not being appealed by respondent
  3. 3 Whether the findings of the Trial Court and First Appellate Court in favour of appellant operate as res judicata

Ratio Decidendi

The deed (Ex. A6) executed by Ganesan on 12.4.1950 did not create a charge over the property but was merely an undertaking not to alienate; thus, the appellant did not acquire rights as a puisne mortgagee. The High Court appropriately exercised discretion under Order XLI Rule 33 CPC to dismiss the suit entirely in the circumstances. Findings in favour of the appellant by trial and first appellate court do not operate as res judicata where appeals are pending and the whole matter is before the appellate court.

Court Disposition

Appeals dismissed.

Orders

  • Suits and decrees in favour of appellant dismissed; no order as to costs.