D.S. Mathur, J.
1. This is a Second Appeal by Kuber Singh and another, minor sons of Bhagwan Din alias Bachcha, against the decree and judgment of the Civil and Sessions Judge of Banda, dismissing their appeal, on the ground that the entire mortgage debt of Rs. 1,500/- was due when their father sold 9 Bigha 1 Biswa land to the defendants-mortgagees on May 28, 1941, and as the sale was for payment of genuine antecedent debts, it could not be set aside at the instance of the sons.
2. The material facts of the case are that the plaintiffs' father and uncle had usufructuarily mortgaged 17 Bigha 2 Biswas of the their zamindari property in favour of Pearey Singh, father of Beni Madho Singh, on 29-8-1919 for a sum Rs. 835/-. In 1924, the plaintiffs' father executed another usufructuary mortgage of 3 Bigha 5 Biswas land in favour of the same mortgagee for a sum of Rs. 685/-. On 28-5-1941 the plaintiffs' father sold 9 Bigha 1 Biswa land for Rs. 1,500/- to the mortgagee as a result of which the earlier mortgages of 1919 and 1924 were fully paid out of the sale consideration. This sale was successfully preempted by Arjun Singh, defendant No. 1, whereafter he entered into possession of the property sold
3. The plaintiffs instituted the present suit in 1945 for possession of 9 Bigha 1 Biswa land sold to defendant No. 2, and then in possession of defendant No. 1, with the allegation that the property was joint and ancestral property and had been sold without any legal necessity and without consideration it is said that the two mortgage debts were satisfied out of the usufruct and on the date the sale-deed was executed no amount was due under the two mortgages. Consequently, the sale was without consideration.
4. Defendant No. 1 contested the suit on the ground that the sale-deed had been executed for payment of antecedent debts and hence was binding on the sons and that the mortgage debts had not been paid up and the sale-deed was for valid consideration
5. After accepting the defendant's version, the Munsif dismissed the suit, but the appellate court took a different view and allowed the appeal of the plaintiffs The appellate court held that the mortgage debts had already been paid up in full before the execution of the sale-deed in 1941 with the result that the sale was without consideration and hence could be challenged by the sons.
6. Arjun Singh, defendant no 1 had died meanwhile and his legal representatives preferred a Second Appeal before the High Court. The High Court allowed theSecond Appeal on 9-11-1956 and remanded the appeal for a fresh decision according to law in the light of the observations made therein.
7. When the appeal was taken up afresh for hearing, the lower appellate court recorded additional evidence of the parties and, on the basis of the Full Bench decision in Dara v. Mathura, AIR 1951 All 643, which was brought to its notice on the date of argument, dismissed the appeal on the ground that the total mortgage debt was due and hence the sale-deed was for consideration and for payment of antecedent debts. The lower appellate court, however, recorded the finding that if the Full Bench decision was not made applicable and profits were calculated as in the earlier stages of the litigation the total mortgage-debts shall be fully paid up and in such a case the sale shall be without consideration.
The plaintiffs are naturally challenging this decree on two grounds: firstly, that after remand the lower appellate court had no jurisdiction to apply to the instant case the decision in the above Full Bench case: and secondly, that profits in acordance with the law laid down in the above Full Bench case had not been determined in this connection, it was contended that the circle rates were filed at the stage of argument, and the plaintiffs had no opportunity to lead evidence as to the fair occupation rent at which profits were to be worked out.
8. The order of remand passed by the High Court in the above Second Appeal was appealable and hence any finding recorded or direction given in the Second Appeal while remanding the appeal for a fresh hearing could not be reagitated before the court below or before the High Court and the only remedy available to the aggrieved party was to prefer an appeal against the order of remand No such appeal was filed.
The material point for consideration, therefore, is whether Upadhya, J. had given any direction as to how profits shall be calculated. If, in the eye of law, such directions were given, they cannot be reagitated at a subsequent stage even though by inadvertence the above Full Bench case had not been brought to the notice of the Judge hearing the Second Appeal; but if no finding was recorded or direction given such that it would be binding on the parties, the matter could be re-considered and all the points in issue could be raised before the lower appellate court. In such circumstances, the lower court shall be deemed to have acted rightly by following the Full Bench decision.
9. A perusal of the order of remand passed in the Second Appeal makes it clear that certain legal points had been finally decided, though other connected points or other points had been left open for decision by the lower appellate court. For example,a finding was recorded with regard to the scope of Section 30 of the U.P. Agriculturists' Relief Act, though the effect of this provision had been left open for consideration. It was held that the contention raised by or on behalf of the defendant that in absence of an application under the provisions of the U.P. Agriculturists' Relief Act, the liability in respect of the mortgages remained intact, was without force. The finding recorded in the Second Appeal, therefore, was that the liability under the mortgages stood reduced automatically on the coming into force of the U. P. Agriculturists' Relief Act. The question left open for consideration was whether as a result of the reduction of the debt the mortgages stood automatically redeemed.
10. Thereafter the mode of calculation of profits was commented upon. The lower appellate court had recorded the finding, based upon certain calculations, that the amount of the two mortgages had been paid up in full prior to the execution of the sale deed. The finding based on such calculation was not upheld. Upadhya, J. hearing the Second Appeal observed that there was no evidence on record to determine the prevailing market rates of grain nor the possible expenses incurred in raising and harvesting the crop, that no allowance was made for the straw consumed by the bullocks and that an assumption as to the expenses on cultivation had been made. It was observed that it was not possible to do justice on such presumptions and it was essential that the matter be considered in a judicial manner.
It was thus considered necessary to send back the case to the lower appellate court for a fresh decision of the appeal after considering the matter in a proper manner and deciding the issue involved, on the basis of evidence. The lower appellate court was given the power to admit further evidence on any question that it may have to decide. In the operative part of the order of remand, the lower appellate court was directed to decide the appeal afresh according to law in the light of the observation made above.
11. The above suggests, and, in fact, makes it clear, that the mode of calculation by the lower appellate court had been challenged before Upadhya, J. and all the observations made by him show that according to him the judgment of the lower appellate Court was based on assumption and the matter could not be deemed to have been considered judicially in a proper manner. It is true that in the Grounds of Appeal and also at the time of the hearing of the Second Appeal, no reference was made to the above Full Bench case. In fact, there was no suggestion that only fair occupation rent could be adjusted towards the mortgage debts. However, one thing is clear that except for the comments it was not laid down how the profits to be credited towards the mortgages were to be determined. In substance, no directions were given, nor was any finding recorded as to what part of the profits or what annual amount was to be credited towards mortgages. The whole matter was left open.
12. A reference can now be made to the various reported decisions which have been brought to my notice. Satyadhyan Ghosal v. Smt. Deorajin Debi : 3SCR590 simply lays down that the correctness of an order of remand can be challenged in appeal from the final decision provided that the order of remand is not appealable. Prior to the order of remand the lower appellate court had recorded the finding that both the mortgages had been fully satisfied, and when the High Court remanded the appeal for a fresh hearing the person to feel aggrieved would be the plaintiffs, and not the defendant unless some finding was recorded or direction given against him. Consequently, the observations of Upadhya J. shall not disentitle the defendant from raising before the lower appellate court the mode of calculation of profits unless the observations made are deemed to be a finding or direction by the High Court and as such are final.
In G. H. Hook v. Administrator General of Bengal, 19 All LJ 366 = (AIR 1921 PC 11) it was held that :
'When a question at issue between the parties to a suit is heard and finally decided, the judgment given on it is binding on the parties at all subsequent stages of the suit. Its binding force depends not upon the Code of Civil Procedure, Section 11, but upon general principles of law; if it were not binding, there would be no end to litigation.'
Similarly, Court of Wards v. Raja Leelanund Singh. (1876) 25 Suth WR 157 (PC) lays down that neither the Courts in India nor the Judicial Committee itself could go behind the decision or order of the Judicial Committee in a former appeal arising out of the same suit or proceeding. What had been declared by the Judicial Committee in the former appeal was
'So much of the land in question as might, upon such inquiry, appear to be comprised in the said Bunkur and Boondee Mahals or Ghauts belonged to Havelee, and that plaintiff was entitled to recover the residue of the land in question;'.
At another place it was observed that
'In the course of that, it found that two mouzahs named, the one Gormaha or Kormaha, the other, Ghora-Khore, which lay partially if not wholly, within the disputed territory had been advisedly relinquished by the Revenue Authorities pending the resumption-proceedings, as part of the Nizamut Mehals, and accordingly that so much of the disputed land as was appurtenant to these mouzahs belonged to and ought to be adjudged to, the plaintiff.'
One of the settlement proceedings conducted was conducted by Mr. Piron. These observations make it clear that the Judicial Committee had recorded a finding as to the rights of the parties and it was merely to be considered how much of the disputed land was appurtenant to Gormaha or Ghora-Khore, and such land was held to belong to the plaintiff. The land appurtenant to the two mouzahas was to be determined with reference to Piron's settlement.
13. On remand the Calcutta High Court recorded evidence beyond the jurisdiction of its inquiry. The cause for recording such evidence appears from the argument raised at the Bar. It was contended that it was open to the parties under the order of remand to show that the inclusion of land in Mr. Piron's settlement was intentional or improper. The evidence was thus recorded to question the propriety of the settlement and its binding force upon the plaintiff.
14. When a decision was given as to the rights of the parties and the properties or the kind of properties which belonged to the plaintiff, and further inquiry was to be conducted to find out the land included in Mr. Piron's settlement, all the points in issue had been decided and the further inquiry was restricted only to the determination of the land which, according to Mr. Piron's settlement, was appurtenant to the two mouzas, and belonged to the plaintiff. There was thus a clear finding, and after remand such finding was binding on the parties. In the instant case, however, no such finding or direction was given: only comments were made.
15. in Chunnilal v. Habib Ali, AIR 1916 All 213 the trial court had framed seven Issues, but during the trial recorded a finding on three only, one of which is not material for purposes of this case. The subordinate Judge found that the mortgage-deed had been duly executed by Shaukat All, but the payment of consideration was not satisfactorily proved. In appeal the due execution of the bond was not challenged and on the other point a Bench of this Court recorded the finding that the payment of consideration was proved. Thereupon, the suit was remanded for decision on merits.
It was during the fresh hearing of the suit on remand that the defendant raised the question that the mortgage bond had not been attested in accordance with the law. This new point was raised on the basis of a Privy Council decision given since after the remand. It was held that after the order of remand became final, the question of attestation of the mortgage bond could not be raised during the subsequent proceedings. This view was adopted because in the original appeal the plaintiff could have reagitated the question of the execution of the bond in support of the decree which had been passed by the trial court.
What this case, therefore, lays down is that a point which could be raised to opposethe remand cannot be raised at a subsequent stage; but a party who could argue an additional point to obtain the remand, shall not ordinarily be bound by the omission, that is, no decision being given on the additional point. It often happens that only one of the many points raised or which could be raised may be sufficient to obtain an order in one's favour and to save the time of the Court only that point may be argued, and no others. In any case, the above case does not lay down that a point which could have been raised by the successful party in support of the order passed in his favour cannot, if necessary, be raised at a subsequent stage.
16. Mt. Masihunnissa Bibi v. Mt. Kaniz Sughra Bibi, 60 Ind Cas 957= (AIR 1921 All 276) does not lay down any proposition beyond what can be inferred from the above discussed Allahabad case.
17. The Judges hearing the case of Janki Shah v. S. Mahomed Abbas, AIR 1923 Oudh 50(2) had followed the P. C. decision in 19 All LJ 36=(AIR 1921 PC 11) (supra) and consequently it is not necessary to make further comments on this case. The purpose shall be served by observing that in this case a finding was recorded at an earlier stage on one question of limitation and after remand the defendant was permitted to plead that the suit was barred by Article 144 of the Limitation Act. This view appears to be in conflict with the decision in the two Allahabad cases referred to above.
If the suit was barred under Article 144 of the Limitation Act, the order of the courts below dismissing the suit would have been proper and no occasion for remand would nave raised. Consequently, when the unsuccessful party did not raise the plea of Article 144 in the Second Appeal prior to the remand of the suit, it could not be permitted to be raised at a subsequent stage. This is what was held in the two Allahabad cases, but the Oudh Chief Court permitted the party to raise at a subsequent stage a point which could have been raised to oppose the order of remand. The Oudh case is thus helpful to the defendant than to the plaintiffs appellants.
18. in Ethiraja Mudali v. Muthu Reddi : AIR1961Mad410 the Judge remanding the suit in the trial court had given directions as to the basis on which the scaling down should be made in view of the Madras Act, 24 of 1960, which had come into force during the pendency of the Second Appeal. The order of remand was not challenged in appeal, nor was an attempt made to have the order reviewed. It was held that the directions given were within jurisdiction and those directions could not be challenged at a subsequent stage.
19. Charles N. Ambrose v. Meenakshi Ammal Ramal Ammal, AIR 1953 Trav Co. 109 is another case where it was laid down that the parties were bound by the terms of the remand order and it was necessary for the court below to comply with the directions contained in the remand order. Similarly, it was held in Ramkuvarbai v. Damo-dar Narbhaeram, (1869) 6 Bom HCAC 146 that the correctness of the law or of any finding recorded while passing the order of remand cannot be challenged at a subsequent stage in the same proceeding, either before the courts below or before the higher Courts. (See also Sambhu Yellareddy v. Laxmamma, : AIR1965AP474 , Bisai Nath v. Tara Nath Deb, AIR 1923 Cal 385 and Smt. Lalbati Kuer v. Satchitanand Verma : AIR1960Pat418 .
20. Kaluram v. Mehtab Bai : AIR1959MP181 is a case laying down that any matter expressly or impliedly decided by the order of remand cannot be reopened after remand. Similarly, in Bai Bai v. Mahadu Marati, AIR 1960 Bom 543, the giving of anticipatory and provisional reasoning in respect of matter of an issue not decided by the trial court, given in support of the finding on the preliminary issue decided by the trial court, was held not to be final. This case thus makes a differentiation between a finding, decision or direction given in the case and mere observations made in support of the order of remand. The last case brought to my notice is of Laxman Shivashankar v. Saraswati, : AIR1961Bom218 . This merely lays down which findings recorded in a suit have the force of res judicata. No detailed comments need be made on the scope of Section 11 C.P.C. or the principle of res judicata. It can simply be observed that every observation made does not operate as res judicata. It invariably depends on the facts and circumstances of the case whether a finding recorded can or cannot be reagitated at a subsequent stage or in another suit.
21. The consistent view of all the High Courts therefore, is that any finding, decision or direction given in the order of remand is final and cannot be re-opened in the same proceeding before the same Court or before any other Court. This principle is applicable to not only findings, decisions or directions expressly recorded in the case, but also to such findings, decisions or directions which can, by implication, be deemed to have been recorded. Similarly, if any point is not raised before the remand and the point is such which would have made the remand unnecessary, such point cannot be permitted to be raised at a subsequent stage, otherwise there would be no finality to any proceeding. However, all the observations made in a case cannot be placed in the same category as a finding, decision or direction. It very often happens that the remand of the case may be necessary not on one ground but on many, and for purposes of remand the party may raise only one point, and not all. Any comments made on the point raised cannot, therefore, be interpreted to mean that the other points weregiven up for ever, or cannot be raised during the re-hearing after remand.
22. it is true that, in the instant case, the mode of calculation was challenged on certain grounds, and not all; but if the points already raised did not appeal to the Court, the party could, with the permission of the Court, raise other points even though not taken in the grounds of appeal, all the more, when there existed an earlier decision of the Court in his favour. In any case, the additional points could, if necessary, be raised by way of review, but no review application shall be maintainable where the order is in favour of the party. Review is sought for only when the order is against the party and he desires to have an order in his favour.
Similarly, the party not challenging the order of remand cannot appeal against that order. The appeal is not against any finding, direction or observation, but is against the decree or final order passed in the case. A party submitting to the order of remand cannot prefer an appeal simply because some of the observations made are not in his favour. In this view of the matter, it was open to the defendant-respondent to raise a fresh point at the time of the re-hearing of the appeal in support of his contention that by the time the sale-deed of a part of the mortgaged properties was executed, the mortgage money had not stood paid up in full.
23. This takes us to the consideration of the facts of the instant case. A perusal of the Court's order dated 9-11-1956 in Second Appeal No. 1670 of 1949, whereby the appeal was remanded for a fresh decision according to law in the light of the observations made in the order, makes it clear that a final opinion was expressed on certain questions of law, and not all. The finding of the lower appellate court that the amount of the two mortgages had been paid up in full by the time the sale-deed in dispute was executed, was challenged, and this finding was regarded to be such as could be Interfered with in Second Appeal.
The finding was set aside on the ground that it was based on assumptions, and not on Judicial evidence. It was observed that there was no evidence to prove the prevailing market rates of grains and the possible expenses incurred in raising and harvesting the crops. It was further observed that it was essential that the matter be considered in a judicial manner, and it was necessary to send the case back to the lower appellate court for a fresh decision after considering the matter in a proper manner and deciding the issues involved on the basis of evidence. The lower appellate court was permitted to admit additional evidence, if necessary
It will thus appear that the mode of calculation of profits to be adjusted towardsthe mortgage money was specifically challenged in the Second Appeal, but the learned Judge hearing the appeal nowhere laid down that after remand the mode of calculation adopted by the courts below was to be followed. In fact, the use of the words 'in a judicial manner' and 'in a proper manner' suggest that everything was left open. When this Court gave no direction as to the mode of calculation of profits to be adjusted in the mortgage money, any observation made shall not operate as res judicata, nor shall such observations debar the defendant from placing reliance upon an earlier decision of this Court and contending that the profits be calculated in the manner laid down in that case. The lower appellate court thus acted rightly by taking the earlier decision in : AIR1951All643 (supra) into consideration and deciding the appeal on its basis even though such points had not been raised earlier, not even it the time of the remand
24. From the material on record, it, however, appears that the defendant relied upon the above Full Bench case at a late stage after the close of the evidence, when he filed Khasra settlement and Parta settlement. These two documents are not and cannot be treated as conclusive evidence of 'fair occupation rent' of the mortgaged properties. As laid down in the above Full Bench case, 'fair occupation rent' at which profits must be worked out is the most favourable rate of rent at which the land could be let out.
The most favourable rate of rent shall invariably be the rate of rent at which land was let out during the material period. In the absence of such evidence, profits could be calculated on the basis of sanctioned rent-rates (circle rate) treating such rate to be a fair occupation rent. In view of the fact that the documentary evidence was filed at a late stage, the plaintiffs-appellants were naturally handicapped in leading proper evidence. The remand of the appeal for determination of fair occupation rent and for the fresh decision of the appeal is thus accessary so that none of the parties may be prejudiced.
25. The Second Appeal is hereby allowed in the sense that the decree under appeal is set aside and the appeal is remanded for a fresh hearing in accordance with the law. Costs of this Court shall abide the decision of the appeal. Considering that the litigation has been pending for about 20 years, the lower appellate court is directed to expedite the hearing of the appeal.