IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 RSA.No. 205 of 2004 --------------------------------- AS.83/1996 of SUB COURT, ATTINGAL OS.96/1990 of MUNSIFF COURT, ATTINGAL .................... APPELLANT/APPELLANT/DEFENDANT: MEENAKSHI, D/O.VAMADEVAN, SEENA SADANAM, ERATHIYIL, MEVARKKAL DESOM, NAGAROOR VILLAGE. BY ADV. SRI.G.S.REGHUNATH RESPONDENT/RESPONDENT/PLAINTIFF: BHANU, S/O.RAMAN, PATTATHIL VEEDU, THANNIKKONAM, DARSANAVATTAM, NAGAROOR VILLAGE. BY ADV. SRI.M.R.RAJESH THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- R.S.A.No.205 of 2004 -------------------------- JUDGMENT Appellant is the defendant and respondent, the plaintiff in O.S.No.96/1990 on the file of Munsiff's Court, Attingal. Respondent instituted the suit seeking redemption of Exhibit A3 mortgage executed by the assignor of the respondent in favour of the appellant on 11.1.1968. Respondent purchased the plaint schedule property as per Exhibit A1 sale deed dated 13.2.1990 from Bharathi, who is, admittedly, the original owner of the plaint schedule property. Exhibit A3 superior mortgage was created by Bharathi in favour of the appellant on 11.1.1968, which is sought to be redeemed by instituting the suit. 2. Appellant resisted the suit contending that on 31.1.1990, Bharathi, the assignor of the respondent, along with her son Devadasn, executed an agreement for sale in respect of the mortgaged RSA 205/04 2 property and put her in possession pursuant to the agreement for sale. Thereafter, the son of Bharathi had received Rs.2,000/- for the treatment expenses of Bharathi and Bharathi had also received Rs.1,500/- as additional consideration and appellant instituted O.S.No.103/1990 for specific performance of the agreement for sale and hence, respondent is not entitled to the decree sought for. 3. Learned Munsiff, on the evidence of PW1 and Exhibits A1 to A6, held that by Exhibit A5 judgment in O.S.No.103/1990, filed by the appellant for specific performance of the agreement for sale, was dismissed, which was confirmed by the appellate court under Exhibit A6 judgment and therefore, based on the suit, appellant is not entitled to defend the claim for redemption. Learned Munsiff granted a decree for redemption and recovery of possession as sought for. Appellant challenged the judgment and decree before Sub Court, Attingal in RSA 205/04 3 A.S.No.83/1996. Learned Sub Judge dismissed the appeal. It is challenged in this second appeal. 4. Second appeal was admitted formulating the following substantial question of law: As the defendant has contended that she is in possession of plaint schedule property on the strength of an agreement for sale and has filed a suit O.S. 103/1990 for specific performance, should not the court either stay this suit till the final disposal of O.S. 103/1990 or jointly try both the suits and pass a decree. 5. Learned counsel appearing for the appellant and respondent were heard. 6. Exhibit A3 mortgage is admitted. Under Exhibit A1 sale deed, respondent had stepped into the shoes of the mortgagor and instituted the suit for redemption. Both the trial court and the appellate court granted the decree. Second appeal was admitted only on the contention raised by the appellant that when O.S.No.103/1990, a suit filed for specific performance of the agreement for sale entered into by the original mortgagor in favour of RSA 205/04 4 the appellant is pending, the courts below should have either stayed the suit or should not have granted the decree. Second appeal was admitted because S.A.No.663/1996, filed by the appellant challenging Exhibits A5 and A6 judgments, was pending before this Court. By separate judgment that second appeal was dismissed today. In such circumstances, this second appeal can only be dismissed. This Regular Second Appeal is dismissed. 2nd February, 2010 (M.Sasidharan Nambiar, Judge) tkv