Shyamsunder Kuer vs Mathura Prasad Sen

Sinha, J.—This is a decree-holder''s appeal from the decision of the learned Subordinate Judge of Gaya, upholding the judgment-debtor''s objection to the execution of the decree.

The facts leading up to this appeal may shortly be stated as follows: The respondent executed a usufructuary mortgage bend on 26th Bawan 1330 Fasli, corresponding to 22nd August 1923, securing repayment of Rs. 95,000 in favour of the appellant. The mortgagor purported to deliver possession of two villages named Kuhila, including Karman Biggha, and Bhawanpur, including Alagdiha, comprised in Tauzi No. 4233 in mahal Kuhila as also certain Ichudkasht and hahasht lands contained in the schedule to the deed of mortgage. The usufruct of the mortgaged properties was fixed at Rs. 8000, out of which the mortgagee in possession was to appropriate the sum of Rs. 7125 as interest on Rs. 95,000, the principal sum secured, at the rate of 7�% per cent. Per annum. The remaining sum of Rs. 875 was stipulated to be paid back to the mortgagor every year in two instalments. Two days later, two other documents were executed between the parties, namely (1) a deed of lease (called patta katkena), whereby the mortgagee in possession leased back to the mortgagor the mortgaged properties aforesaid on a fixed annual rent of Rs. 8000, and (2) a "mortgage security bend," mortgaging mauza Bhawanpur, out of the mortgaged properties, as also mauza Bunderkol as a security for the regular payment of the rent of the leasehold properties, and agreeing to pay interest on unpaid instalments of arrears of rent at the rate of Re. 1-9-0 per cent. Per month. As usual, the mortgagor failed to pay the stipulated amount of rent to the mortgagee, with the result that a final mortgage decree was obtained on 11th January 1930, for the sum of about thirty thousand rupees in mortgage Suit No. 34 of 1927. The decree was put into execution in Execution Case No. 14 of 1930. In that execution case, the decree-holder prayed for the sale of mauza Bunderkol as also of mauza Bhawanpur. The mortgagor objected to the sale of mauza Bhawanpur u/s 47 read with Order 34, Rule 14, Civil P.C., and contended that village Bhawanpur could not be sold. The executing Court held that the provisions of Order 34, Rule 14 were a bar to the execution of the decree by sale of village Bhawanpur. It accordingly directed that mauza Bhawanpur should not be Hold in execution of the decree. Ultimately, the other village, Bunderkol, was sold. The mortgagee obtained another, decree on the mortgage security bend, which was made final on 23-11-1940, for the sum of Rs. 59,716 odd, principal with interest up to the date of execution, that is to say, about the end of 1943. In the execution petition, the decree-holder prayed for the sale of mauza Bhawanpur, the remaining property comprised in the mortgage security bend. In this execution case, the judgment-debtor took the same objection to the sale of mauza Bhawanpur as he had taken successfully in the previous execution case. The executing Court has again upheld the judgment-debtor''s contention, and held that mauza Bhawanpur cannot be sold unless the provisions of Rule 14 of Order 34 of the Code have been complied with. His reasons for such a decision are two-fold, firstly, that the usufructuary mortgage bend, the deed of lease and the mortgage security bend being all parts of the same transaction, the provision of Rule 14 of Order 34 are a bar to the sale, and, secondly, that the previous decision in the execution case of 1930 was res judicata between the parties. Hence, this appeal by the decree-holder.

Before dealing with the merits of the appeal, I may mention the fact that the paper-beok as prepared originally did not contain all the relevant documents on which the decision of the appeal depended. The learned advocate for the respondent made an application under Rule 27 of Order 41 of the Code for reception of additional evidence. The application sets out the documents which the respondent prayed to be admitted as additional evidence. The learned advocate for the appellant did not object to this course. As a matter of fact, be welcomed the proposal. The learned advocate for the respondents has supplied the Court with copies of these documents, which are mostly public documents, with translations where necessary. We have looked into these documents on the assumption that they are part of the records of this case.

Mr. Baldeva Sahay has raised the following contentions in support of the appeal, namely, (1) that the provisions of Rule 14 of Order 34 of the Code are not applicable to the facts of the present case for the reasons (a) that the decree under execution is not one for payment of money (b) nor was it in satisfaction of a claim arising under the mortgage; (2) that really the decree under execution was for sale of the mortgaged properties as comprised in the zamanatnama. (security bend), and, therefore, the provisions of Rule 12 of Order 34 of the Code could more appropriately be applied to this case; (3) that, in a previous execution in respect of the decree taken out in 1940, the judgment-debtor had taken the same objection, which he allowed to be dismissed for default, and that order of dismissal should operate as res judicata between the parties, and, being the later res, should prevail over the earlier and (4) that the order under appeal really amounts to a refusal by the executing Court to execute the decree as it stands.

Mr. Mitter, appearing on behalf of the respondents, has contended, in answer to the appellant''s contentions, that the three documents between the parties are really parts of the same transaction, and he has relied upon two Division Bench rulings of this Court reported in Nanekeshwar Prasad v. Nand Gopal Ram AIR 1943 Pat. 283 and Umeshwar Prasad v. Dwarika Prasad AIR 1944 Pat. 5 and also upon the decision in AIR 1927 32 (Privy Council) . He also suggested that, though the decree was in terms a decree for sale of the mortgaged properties, in substance it was a decree for payment of money, the rent reserved under the lease, which was really the usufruct of the properties mortgaged under the usufructuary mortgage bend. And, lastly, he contended that the decision in the fist execution case of 1930, in which a similar objection raised by the judgment-debtor to the sale of the very same village Bhawanpur was upheld operated as res judicata between the parties. Relisnce was placed on the decision of a single Judge of the Madras High Court in Chinnappayan v. Narayana Pattar AIR 1940 Mad. 59.

A good deal of argument was advanced by counsel for the parties on the question of whether the three documents between the parties were or were not parts of the same transaction. It was contended on behalf of the appellant that the zamanatnama could not possibly be treated as part of the first mortgage transaction for the reason that the properties in the zamanatnama were not identical with these given in the usufructuary mortgage; only village Bhawanpur of the properties in the usufructuary mortgage was included in the zamanntnama which contained the additional village Bunderkol. It was also contended that, whereas the rate of interest in the usufructuary mortgage bend was 7� per cent per annum, the rate of interest in the zamanntnama would work out at Re. 1-9-0 per cent. Per mensem.

In my opinion, it is not absolutely necessary to determine this question in this appeal. The appeal, in my opinion, must be allowed on the construction of Rule 14 of Order 34 of the Code, on which relisnce has been placed by both the parties as determining the question in controversy between them. It is manifest that the decree under execution in terms is a decree for sale under Order 34 Rule 5(3) of the Code, the effective portion of which is as follows:

It is hereby order and decreed that the mortgaged property in the aforesaid minary decree mentioned or a sufficent part there of be sold

Hence, clearly this is not a decree for the payment of money within the meaning of Rule 14 of Order 34 of the Code. Hence, the very first condition necessary for the application of the rule is wanting in this case. The question whether the decree is in. satisfaction of a claim arising under the mortgage need not be discussed, in view of the position already indicated that it is not absolutely necessary to decide the question whether all the three documents form parts of the same transaction.

In view of the fact that the previous objection of the judgment-debtor to the sale of mauza Bhawanpur was dismissed without adjudication, the execution case itself being dismissed for non-prosecution, the decree-holder is not entitled, in my opinion, to invoke the aid of the rule of res judicata in her favour.

The only question which now remains to be determined is whether the learned Subordinate Judge is right in holding that the judgment in the previous execution ease in execution of the previous decree, referred to above is res judicata between the patties. It is true that the previous decree also was for sale in similar terms as the present decree under execution. Beth the decrees had been passed in enforcement of the same mortgage bend called the zamanatnama. It was argued by Mr. Baldeva bahay that a decision at one stage of execution proceedings is res judicua at a subsequent stage of the same execution proceedings; but that decision in one execution case in execution of a previous decree cannot operate as res judicata in a different execution, proceeding for the enforcement of a different decree, though between the same parties and raising the identical question. Ordinarily, that would be so.

But, as pointed out by the single Judge of the Madras High Court, Section 11 in terms applies the rule of res judicata by providing that the decision in a previous suit between the same parties would operate as res judicata in a subsequent suit raising the same issues. He also observed that execution proceeding is a continuation of the suit. Hence, the decision in one execution case should be deemed to be a decision in that suit which should operate as res judicata in execution proceedings taken in execution of a decree in a subsequent suit, if the parties are the same and the issues are identical. In my opinion, the real answer to the plea of ras judicata raised by tie judgment-debtor and given effect to by the Court below is the at the decision in the second mortgage suit which has resulted in the decree under execution is res judicata between the parties. The mortgage suit was contested by the mortgagor either he raised the contention now raised in the execution proceedings or he did not. In either view of the matter, the decision is res judicata. The decree has specifically directed the sale of mauza Bhawanpur, which is the only property now remaining out of the properties comprised in the zamanatnama. When the final mortgage decree between the parties has specifically directed that mauza Bhawanpur, or a sufficient part thereof, be sold in execution of the decree, this decision must be final between the parties as res judicata, superseding the former res contained in the judgment of the executing Court given in the execution case of 1930. It will be putting the same matter in a different form by saying that the executing Court cannot go behind the decree under execution, and hold that, notwithstanding the specific direction in the decree, that direction shall not be carrel out by the executing Court, Such a contention is absurd on the face of it.

As a result of these considerations, it must he held that the orders parsed by the Court below cannot be sustained. The appeal is accordingly allowed, and the execution directed to proceed in accordance with law. The appellant is entitled to her costs in this Court and in the Court below.

Mukharji, J.

I agree.