(Boggavarapu) Bullayya and Others vs (Garlapati) Subbayya and Another

Madhavan Nair, J.—In these Civil Miscellaneous Second Appeals the defendants in O.S. Nos. 620 and 621 of 1921 on the file of the

Subordinate Judge of Bapatla are the appellants. The decree-holders, who are the same in both the suits, are the respondents. They obtained

preliminary decrees against the respondents as the defendants in the two suits on a mortgage given by them in respect of a specific undivided share

in a certain land alleged to be the service inam belonging to the defendants. A decree for the sale of the properties was passed. As it was found

that the proceeds of the sale were insufficient to meet the decree, a personal decree was passed and in execution of that personal decree the

remaining portion of the property which had not been mortgaged was attached. This attached portion of the property and the portion already sold

form undivided parts of the same survey number.

When this property was attached the appellants judgment-debtors intervened with a petition u/s 47, Civil P.C., alleging that the land was service

inam and was consequently not liable to attachment and that therefore it should be released from attachment. The respondents contended that the

land was not unenfranchised service inam and that the application of the appellants was barred by res judicata by a certain prior order passed in

execution of the decree in O.S. Nos. 620 and 621 at an earlier stage. The District Munsif held that the land was unenfranchised service inam and

was therefore unattachable, and that the previous order did not operate as res judicata. In the result the attachment was ordered to be raised by

the first Court. In appeal this order was set aside by the learned Subordinate Judge. He held on the merits that the land was service inam agreeing

with the District Munsif on this point: but he held that the previous order referred to operated as res judicata and therefore it was not open to the

judgment-debtors to raise the plea that the land was unattachable. He further held that even if the plea of res judicata cannot be maintained still,

though the land was service inam, it was liable to attachment during the lifetime of the mortgagors, relying on a decision in Vengali Venkanna and

Others Vs. Polamarasetti China Appala Swami, . This decision has been recently considered and dissented from in (Kammara) Chinna Nagiah and

Another Vs. Yerraguntla Pullayya and Others, , and having regard to this decision the respondents did not seriously argue that the lower appellate

Court''s decision on this point is correct. The concurrent finding of the lower Courts that the land is service inam, also cannot be questioned in

these second appeals. So the position is this: if the previous order relied on as a bar to the present proceedings does not operate as res judicata,

then the property is not liable to attachment and the lower Court''s order will have to be set aside. Therefore the question for consideration is

whether the previous order passed in execution would operate as res judicata in the present proceedings.

The order is Ex. 1 (a) and it was passed in the following circumstances. After the portion of the property subject to the mortgage was ordered

to be sold in execution of the mortgage decrees, the judgment-debtors, that is the appellants, filed an application under Order 21, Rule 90 to set

aside the sale on the ground of irregularity and fraud and they alleged in the petition that the suit land formed part of service inam. The sale was not

attacked seriously on the ground of irregularity and fraud, but the judgment-debtors seem to have stressed the point that the land in question

formed part of the service inam. The Munsif held that though the land was probably service inam once, it was subsequently enfranchised or

resumed and therefore he dismissed the petitions. It is this order that is now sought to be relied on as constituting res judicata in the present

proceedings. After this order of the District Munsif the judgment-debtors filed a suit before the Deputy Collector u/s 13, Act 3 of 1895, with

respect to this land for the recovery of the emoluments, the land being a village carpenter''s inam. The Deputy Collector held that the land is service

inam land thereby differing from the District Munsif who passed the order under Order 21, Rule 90. He also held that the melwaram constitutes the

emoluments of the office and that the civil Courts should decide whether the kudivaram also constitutes the emoluments. As the suit was one for the

recovery of possession of the land he dismissed it, and this decision was confirmed in appeal by the Collector. This decision of the revenue officer

is also relied on by the appellants in support of their arguments. The present proceedings originated after this decision.

As I have already stated, the real question in the case is whether the order Ex. 1 (a) is res judicata in the present proceedings. The appellants''

arguments are twofold: first that the learned District Munsif who passed the order under Order 21, Rule 90 had no jurisdiction in such a

proceeding to decide whether the land was service inam or not and that in holding that the land was service inam and therefore saleable, he acted

without jurisdiction, and (2) that, whatever be the District Munsif''s opinion, the matter being one relating to service inam, under the provisions of

Act 3 of 1895, the decision of the Collector was final and is binding on the civil Courts and effect should now be given to it. In support of the latter

proposition various decisions were cited by the learned Counsel for the appellants, such as Rajah of Vizianagaram v. D. Chelliah (1905) 28 Mad

84, Kesaram Narasimhalu v. Narasimhalu Patnaithu (1907) 30 Mad 126, B. Seshayya v. B. Subbayya (1907) 30 Mad 320, Kandappa Achari

Vs. Singara Chari and Others, Rajah of Kalahasti v. Munni Venkatadri Rao Garu AI E 1927 Mad 911, etc., but in the view that I take of the case

it is not necessary to consider these cases, for in my opinion the question of res judicata which is the main question involved in those appeals has to

be decided apart from those considerations. For the purposes of discussion we may well assume that the arguments of the learned Counsel under

the second heading are valid. But the point is, can effect be given to those arguments having regard to the previous order Ex. I (a)? Rightly or

wrongly the District Munsif passed an order that the land is service inam land and to this order the present judgment-debtors were parties. So long

as this order remains in force and is not set aside, how can effect be given to subsequent decisions? It is true that the decision of the Collector

under Act 3 of 1895 is final and is binding upon the civil Courts. That would be so, no doubt ordinarily, but if the parties had subjected themselves

already to an order the purport of which is opposed to the decision of the Collector, how can they refuse to recognize that order so long as that

order remains in force? This is the real question for decision in this case. It is true that the District Munsif has no jurisdiction under Order 21, Rule

90 to go behind the decree and decide whether the land is service inam or not.

But as a matter of fact he did decide in this case that the land is service inam land. That decision is without jurisdiction; but that to my mind does

not affect the question regarding the binding nature of that decision on those persons who were parties to it. So long as that decision remains in

force it is not open to the Courts to recognize and give effect to the decision of the Collector even though the Collector''s decision would be

binding on the civil Courts ordinarily. The decision in Rajah of Vizianagaravi v. Dentiwada Chelliah (1905) 28 Mad 84 strenuously stressed by the

learned Counsel for the appellants no doubt says that an executing Court, even if it has to go beyond the decree in doing so, should recognize the

fact that the land is admittedly service inam land and give effect to it. But it must be remembered that in that case there was no question of res

judicata and no room for the argument that the proceedings were barred by res judicata, on account of a previous order as in the present case.

This, to my mind, is the distinction which distinguishes the present case from all the cases relied on by the learned Counsel for the appellants. In this

connexion attention may be drawn to the decision in Vuppulury Somasundaram Vs. Bhimisetti Kondayya, . In that case:

P, the owner of an unenfranchised inam, mortgaged it to the defendant, The inam, which was then unenfranchised, was subsequently sold in

execution of a money decree obtained against P, and was purchased by the plaintiff''s vendor. The inam was subsequently enfranchised, and, after

its enfranchisement was sold by P, to the defendant, In a suit by the plaintiff to redeem the mortgage in favour of the defendant, the latter pleaded

that, as the property was inalienable on the date of the Court sale at which the plaintiff''s vendor purchased, the plaintiff''s vendor and the plaintiff

acquired no valid title to the property which entitled the plaintiff to redeem the suit mortgage. P had notice of the execution proceedings which

culminated in the Court sale, at which the plaintiff''s vendor purchased. It was held that P and his representative, the defendant, were precluded

from contending that the property was at the date of the Court sale inalienable, and that the-plaintiff acquired no valid title to the property by means

of such sale.

Shortly stated, the decision was that the order confirming the sale was an adjudication which operated as res judicata in the subsequent suit. I

think the principle of that decision may well be applied to the present case. Though the petition which resulted in Ex. 1 (a) was under Order 21,

Rule 90, it is clear that it was created as an application u/s 47, Civil P.C. In considering whether an application is u/s 47, Civil P. C, or not we must

examine the substance of the application to find out its true nature and should not be guided solely by the heading given to it by the applicant. It

was not seriously contended that the application should not be considered as one falling u/s 47, but it was suggested that the decision of the District

Munsif related to the land that formed the subject-matter of the mortgage suit and not to the land which is now sought to be sold in execution of the

personal decree. But it must be remembered that both the items formed undivided portions of the same survey number and therefore the decision

in Ex. 1 (a) will equally apply to all portions of the same survey number. For the above reasons I am not inclined to accept the arguments of the

learned Counsel for the appellants. I am of opinion that the order Ex. 1 (a) would operate as res judicata in the present proceedings and therefore

the lower Court''s order is right. The civil miscellaneous second appeals are dismissed, but the respondents will get costs only in one of them.