Maharaj Bahadur Singh and Another vs A.H. Forbes

Das, J.—The facts are stated with clearness and precision in the judgment of the learned District Judge and it is not necessary to recapitulate them. The following facts are, however, material to understand the position:

One Dhanpat, who is represented in these proceedings by the appellants, obtained a decree for rent against his patnidar Chatarapat Singh so far back as the 10th July 1896 for the period prior to the sale of the interest of Dhanpat to one Mt. Bhagwanbatia Chaudhurain. The proceedings which have given rise to this appeal were taken by the decree-holders, the appellants, to execute the decree against Mr. Forbes, the respondent. Mr. Forbes was the darputnidar under Chatraput Singh and it appears that Chatrapat Singh having again defaulted, the new landlord Mt. Bhagwanbatia Chaudhurain took proceedings against him under the Putni Regulation and put up the putni taluq to sale. Mr. Forbes deposited the rent in order to protect his darputni interest and was put in possession of the taluq on the 29th May 1900, as a mortgagee under the provisions of Section 13, Clause (4) of the Putni Reg. (8 of 1819). Subsequently, one Surendra Narain Singh who had a money decree against Chatrapat put up the property for sale and purchased it himself on the 1st September 1902. The position then was this, the appellants were the holders of a decree against Chatrapat whose interest in the taluq had passed to Surendra Narain Singh, and Mr. Forbes was actually in possession of the taluq as a mortgagee u/s 13, para. 4 of the regulation and entitled to claim redemption first from Chatrapat and also Surendra Narain Singh.

Although I am anticipating events, I may point out there that a suit for account was subsequently filed by Surendra Narain Singh against Forbes and that suit was substantially converted into a mortgage suit and a decree was passed on the 22nd April 1914 giving Surendra Narain the right to redeem the property and providing that on failure to redeem, the property should be sold in due course of law to answer the claim of Forbes against Chatrapat. This decision was upheld by the Calcutta High Court on the 30th July 1915 and a final decree was passed in favour of Mr. Forbes as against Surendra Narain on the 18th January 1917 for Rs. 61,000. On the 2nd July 1917 Mr. Forbes put the decree in execution as against Surendra Narain in the taluq for Rs. 2,000. It is conceded that the balance is still due to him. It may be taken then that Mr Forbes at present represents both the interests of the mortgagor and the mortgagee.

Mean while execution proceedings were taken by the appellants and the question was at once raised whether the decree obtained by Dhanpat Singh as against Chatrapat was a rent decree or a money decree. It is not necessary to go through all the proceedings; it is sufficient to say that claim cases were filed both by Surendra Narain and by Mr. Forbes and that those cases having been decided against them, two suits were instituted, one by Mr. Forbes and the other by Surendra Narain for the purpose of trying the question whether the decree obtained by Dhanpat as against Chatrapat was a rent decree or a money decree. It is obvious that if they could induce the Court to hold that the decree was a money decree, their interest in the property could not be sold; on the other hand, if they failed in their contention, their interest was liable to be sold in execution of the rent decree of the appellants. The suit of Mr. Forbes succeeded in the Court of first instance, whereas the suit of Surendra Narain failed. Appeals were taken to the Calcutta High Court and on the 8th April 1908 the Calcutta High Court held that the decree was a rent decree and was enforceable as against the taluq. Both Surendra Narain and Forbes appealed to the Privy Council; Surandra Narain''s appeal was dismissed on the 14th May 1912 for non-prosecution. Mr. Forbes''s appeal succeeded on the 9th March 1914, the Privy Council holding that the decree obtained by Dhanpat as against Chatrapat was a money decree and not a rent decree. That decision is Forbes v. Maharaj Bahadur Singh AIR 1914 PC 111.

It is conceded that the effect of the decision of the Privy Council is to release Mr. Forbes from all liability to the appellants, But the appellant now contend that Mr. Forbes, as the representative in interest of Surendra Narain, is bound by the decree which the appellants have obtained as against Surendra Narain and that accordingly the appellants are entitled to enforce the decree as a rent decree as against Surendra Narain as represented by Mr. Forbes. The questions which fall to be considered are, first, whether Mr. Forbes may be said to be the representative in interest of Surendra Narain; secondly, whether the appellants are entitled to rely upon the decree obtained by them in the Calcutta, High Court as against Surendra Narain; and thirdly, whether the present application is barred by limitation. The learned District Judge has held that the application is barred by limitation and has also held that Mr. Forbes cannot be considered to be the representative in interest of Surendra Narain. In this view he dismissed the application for execution. Hence the appeal to this Court.

In my opinion there is no doubt whatever that Mr. Forbes must be regarded as the representative in interest of Surendra Narain. The learned District. Judge has referred to various cases on the point which cannot now be considered as good law. The position is explained with great clearness in Mr. Woodroffe''s well-known work, the Indian Evidence Act, at pp. 247 and 248, Eighth Ed.; and so far as this Court is concerned the matter is concluded by the decision of the learned Chief Justice of this Court in Nandkishore Singh and Others Vs. Mathura Sahu and Others, . The learned Chief Justice in that case held that an execution purchaser is the representative of the judgment-debtor so as to bring him within the rule of estoppel and the principle of res judicata. As has been pointed out there is no difference in principle between a purchaser in execution of a money decree and a purchaser in execution of a mortgage decree. It is not necessary for me to pursue the point, for it rests on principle and is covered by authority. I need only refer to the decision of Mr. Justice Mookerjee in Debendra Nath Sen v. Mirza Abdul Samed Seraji (1909) 10CLJ 150.

But the decision on this point by no means decided the case; for although the purchaser at a sale in execution of a mortgage decree must be considered to be a representative in interest of the mortgagor, he must also be considered to be the representative in interest of the mortgagee; and the question at once arises whether when a mortgagee himself becomes the purchaser of the property, it can be said that the charge is extinguished by the sale. In my opinion there can be no doubt whatever that a mortgagee, when he purchases the mortgaged properties at a sale held in execution of a decree obtained by him, is at liberty to hold the mortgage as a shield against any attack that might be made against him by subsequent encumbrancers. It must be recognized that by virtue of the decision of the Judicial Committee in Forbes v. Maharaj Bahadur AIR 1914 PC 111, Mr. Forbes''s charge u/s 13, para. 4 of the Patni Regulation, must take precedence over the charge which a landlord has on the tenure in question. I am assuming for the purpose of this case that the decision in the case between Surendra Narain and the present appellants to the effect that the decree obtained by Dhanpat on the 10th July 1896 was a rent decree is final between the parties and that Mr. Forbes is the representative in interest of Surendra Narain. But even if that be so, the rent decree cannot take precedence over such charge as Mr. Forbes had on the taluq by virtue of his position as a mortgagee u/s 13, para. 4 of Reg. 8 of 1819. What then is the position? Mr. Forbes was the holder of a charge u/s 13, para. 4 of the Putni Regulation. He had also purchased the interest of the mortgagor at a sale held in execution of a mortgage decree. It is well established that the purchaser acquires the equity of redemption of the mortgagor as at the time of the mortgage together with a lien of the mortgagee which he may use if necessary for his protection. It was therefore for Mr. Forbes to decide whether he should extinguish the security or keep it alive for his benefit. We must assume that he made that choice which was manifestly for his benefit. We must assume, therefore that Mr. Forbes kept alive the security to use it, if necessary, as against the present appellants. In this view, it is not necessary for me to enter upon the other questions raised in this case.

I must dismiss the appeal with costs.

Foster, J.

I agree that the appeal should be dismissed with costs: but as the view of this case which I take differs from that of my learned brother, I think it necessary to express it. The first reason that I have for dismissing this appeal is that the Privy Council judgment in Forbes v. Maharaj Bahadur AIR 1914 PC 111 constitutes res judicata binding the parties to the present litigation. We have here before us an objection raised by Mr. Forbes against his inclusion as a judgment-debtor in the execution proceedings based upon a decree of 1896, it being expressed in the decree holder''s application that the decree-holder proposes to follow the putni tenure in the hands of Mr. Forbes. Now, Mr. Forbes has obtained in the Privy Council not only a declaration that the decree of 1896 is not a rent decree but a money decree, not only a declaration that the tenure is not subject to a charge u/s 65 of the Bengal Tenancy Act, but also a perpetual injunction prohibiting the decree-bolder from putting the tenure to sale. But it is urged that Mr. Forbes now represents in some part of his estate the interest of Surendra Narain Singh, the recent putnidar and mortgagor, and to that extent Mr. Forbes is bound by such obligations as bound Surendra Narain Singh.

I return to the question whether the whole of the dispute is not concluded by the rule of res judicata. My proposition is that the present litigation is concluded by the findings of the Privy Council as to the respective rights of the decree-holder, the putnidar and the mortgagee of the putni. It is urged that because Mr. Forbes is now the representative of Surendra Narain, the putnidar, therefore the High Court decision, which was the last decision on the merits in the suit brought by Surendra Narain against the decree-holder, and which has not been disturbed, still avails to confer upon the decree-holder the right to enforce a charge u/s 65 of the Bengal Tenancy Act. The appeal in Forbes v. Maharaj Bahadur AIR 1914 PC 111 included two respondents, one was the decree-holder Maharaja Bahadur and the other Surendra Narain Singh, the putnidar. It was my opinion that there is an estoppel, not only between the appellant mortgagee as he then was (Mr. Forbes), and the respondents in that appeal, but also between those two respondents themselves. I recognize the truth of the general rule that there is no estoppel by res judicata between co-defendants, but there are acknowledged exceptions. I cannot express the exception in the present case better than it is set out in the judgment of West, J., in Rama Chandra Narain v. Narain Mahadeb (1887) 11 Bom 216.

Where an adjudication between the Defendants is necessary to give appropriate relief to the plaintiffs, there must be such an adjudication, and in such a case the adjudication will be res judicata between the defendants as well as the plaintiffs and defendants.

Reference is made to Cottingham v. Earl of Shrewsbury (1844) 8 Hare 627, a case in which a mortgagor sued a number of mortgagee, some of them in possession of part of his estate, for redemption, and the adjudication of the Suit necessitated accounts being gone into between the defendants. Now, in regard to the case before us, we know with exactitude on what lines the adjudication in the case of Forbes v. Maharaj Bahadur AIR 1914 PC 111 proceeded. Their Lordships of the Judicial Committee first found that there was no rent decree and then found that, even if there were a rent decree, it would not avail against Mr. Forbes'' special rights which had accrued u/s 13(4) of Reg. 8 of 1819. In the discussion of the former of these questions it was necessary to establish whether the respondent decree-holder Maharaj Bahadur had a charge upon the tenure which was the property of the respondent Surendra Narain Singh. West, J., in his judgment added the proviso that to produce the of res judicata between two defendants there must be a conflict of interest between those defendants, and a judgment defining the actual rights and obligations of those defendants inter so. In Forbes v. Maharaj Bahadur AIR 1914 PC 111 there was a conflict of interest between the respondents, the decree-holder and the putnidar and a decision thereupon. We know that there was litigation between those persons in the Privy Council in a separate appeal. If, when Mr. Forbes'' appeal was argued, the decree-holder respondent claimed, as he does now, that he had by virtue of the still subsisting High Court decision in Surendra''s case an established charge upon the tenure owned by the respondent Surendra, I have no doubt that his learned Counsel put the claim before their Lordships of the Privy Council. The fact was that Mr. Forbes could not have his rights defined as a mortgagee unless and until it was settled whether there was a charge upon the mortgaged property under the decree of 1896. I, therefore, am of opinion that even if Mr. Forbes now represents Surendra Narain, he can still plead res judicata as against the claim of the decree-holder to put the tenure to sale.

I am also of opinion that the execution is barred by limitation. The painstaking and helpful judgment of the learned District Judge is, so far as I can see, unassailable in this part of his discussion of the case. I agree with him that the petitions of the 22nd January 1915, 19th March 1917, 23rd November 1918 and 2nd December 1922 marked substantial departures from the original application for execution preferred in 1908--so substantial as to indicate breaks in continuity. In the application of 1917 we find a prayer to follow the moveable properties of Chatrapat Singh and properties other than the putni tenure. In the application of 1918 we find a proposal to follow the personal property of Surendra Narain Singh. These appear to me to show divergences of a fundamental character from the course of execution commenced in 1908. I therefore have no hesitation in finding that the present execution is barred by limitation.