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Dakhni DIn and ors. Vs. Syed Ali Asghar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in7Ind.Cas.909
AppellantDakhni DIn and ors.
RespondentSyed Ali Asghar and ors.
Excerpt:
res judicata - same issue tried in two suit between the parties--appeal against one of the decrees only cannot be maintained--finding in one incorporated in the other. - - these mortgages as well as the mortgages on the basis of which suit no. 13 and came to the conclusion that the amount payable to raja ram under the mortgages of 1883 and 1890 had not been satisfied and it made a decree on condition that the plaintiffs should pay the said amount to raja ram in the other suit no. in our judgment this contention is well-founded......the 4th of january, 1883. on the l3th of february, 1890, he mortgaged the same property to bhawani prasad, raja ram and birj mohan, the sons of gaya prasad. on the 12th of september, 1891, he executed a mortgage in favour of musammat nidhoo kunwar. the suit of which this appeal has arisen was brought by the plaintiff to enforce nine subsequent mortgages some of which were in favour of the plaintiff dakhni din and some in favour of his deceased brother this suit was no. 13 of 1906 in the court below. an other suit which was no. 12 was brought by the plaintiffs against hijab-un-nissa, the daughter-in-law of rabat husain and transferees from her, and also against bhanwani prasad and raja ram to enforce three other mortgages in which property, other than the property comprised in the nine.....
Judgment:

1. An objection has been taken on behalf of the respondents to the hearing of this appeal on the ground that the question raised in the appeal has become res judicata in consequence of the plaintiffs not having appealed against the judgment and decree in another suit in which the same issue was determined between these parties adversely to the appellants. The res judicata is alleged to have arisen out of the following facts. One Rabat Husain mortgaged certain property to Gaya Prasad, father of Bhawani Prasad and Raja Ram, defendants, on the 4th of January, 1883. On the l3th of February, 1890, he mortgaged the same property to Bhawani Prasad, Raja Ram and Birj Mohan, the sons of Gaya Prasad. On the 12th of September, 1891, he executed a mortgage in favour of Musammat Nidhoo Kunwar. The suit of which this appeal has arisen was brought by the plaintiff to enforce nine subsequent mortgages some of which were in favour of the plaintiff Dakhni Din and some in favour of his deceased brother This suit was No. 13 of 1906 in the Court below. An other suit which was No. 12 was brought by the plaintiffs against Hijab-un-nissa, the daughter-in-law of Rabat Husain and transferees from her, and also against Bhanwani Prasad and Raja Ram to enforce three other mortgages in which property, other than the property comprised in the nine mortgages referred to above, was mortgaged. These mortgages as well as the mortgages on the basis of which suit No. 13 of 1900 was instituted, related to property which was also comprised in the three earlier mortgages. It appears that in 1905, the heirs of Rabat Husain sold some of the mortgaged property to Nidhoo Kunwar and set off against the consideration for the sale the amount of her mortgage and left with her a portion of the consideration for discharge of the mortgages of the 4th of January, 1833 and the 13th of February, 1890. She at first attempted to redeem those mortgages by payment of a proportionate part of the mortgage money but the mortgagees having refused to allow redemption on those terms she redeemed the mortgages out of the proceeds of a sale executed by her in favour of Bhawani Prasad, defendant, and his brother Raja Ram. Raja Ram, however, repudiated the sale and be asserted that so far as his interests in the mortgages were concerned, the said mortgages were not discharged. The plaintiffs allege that, they have paid to Nidhoo Kunwar the rateable share of liability of the property comprised in their mortgages and they seek to sell the mortgaged property not only for the amount secured by the mortgages in their favour but also for the amount which they paid to Nidhoo Kunwar. Raja Ram who was made a defendant to the suit resisted it on the ground that the earlier mortgages of 1883 and 1890 were not discharged so far as his interests were concerned inasmuch as payment to Bhawani Prasad of the full amount, of the mortgages was not a payment which would have the effect of discharging the share of the mortgage debt due to him. This contention was raised in both the suits to which we have referred. The Court below tried both the suits and disposed of the first suit in which the issue as to the discharge of the earlier mortgages was raised. It recorded its decision on that issue in suit No. 13 and came to the conclusion that the amount payable to Raja Ram under the mortgages of 1883 and 1890 had not been satisfied and it made a decree on condition that the plaintiffs should pay the said amount to Raja Ram In the other suit No. 12 it did not record a separate finding on the issue above mentioned but it referred to its finding on the said issue in suit No. 13 and held in suit No. 12 also that Raja Ram's share in the mortgages of 1883 and 1890 had not been paid off. The plaintiffs have appealed against the decree in suit No, 13 but not in suit No. 12 and the time for preferring an appeal has expired, so that the judgment and decree in suit No. 12 have become final. It is contended that as the issue which arises in this appeal also arose in suit No. 12 between the plaintiffs and Raja Ram and was decided adversely to the plaintiffs and as the judgment and decree in that case have become final between those parties, the question cannot be reopened in this appeal. In our judgment this contention is well-founded. The matter in issue between the parties was substantially determined in suit No. 12 although the reasons for the Court's determination were given in the judgment in suit No. 13 in view of what the Court had held in suit No. 13, it was not necessary to reiterate in the judgment in suit No. 12 the same reasons which were set forth in the judgment in suit No. 13; but the finding in both the suits on the issue was the same. That being so, since no appeal was preferred against the finding and decree in suit No. 12, the matter raised by the issue has become res judicata and cannot be raised again in this appeal. This was so held in the case of Zaharia v. Debi 7 A.L.J. 861 : 7 Ind Cas. 156. We accordingly allow the objection and dismiss the appeal with costs including fees on the higher scale. We extend the time for payment of the various amounts directed by the decree to be paid, including the amount payable to Raja Ram, for a period of six months from this date.


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