1. This is a decree-holder's appeal arising out of certain execution proceedings. In 1889 Mt. Kundan, who owned certain properties and was entitled to a pension from Government, executed a usufructuary mortgage of all these properties including the pension in favour of certain mortgagees. She took possession of the properties under a lease from the mortgagees, and for the due payment of rent she executed another mortgage-deed by way of security in which that pension was again included. The previous mortgage-deed was paid off; but a suit was brought on the basis of the second one and a decree obtained against the representatives of the mortgagor. Mazhar Ali was a purchaser of part of the mortgaged properties, and so was the respondent Bijja Begum. It appears that Mazhar Ali had to pay more than his due share in order to save his property from being sold, and having done so instituted a suit for contribution against Bijja Begam and certain other judgment-debtors. In this suit he claimed that he was entitled to enforce his claim against the portion of the pensions purchased by Mt. Bijja Begam on which he had a charge. The suit was first decided by Oh. Abdul Hasan, who decided issues Nos. 1 and 6 relating to the question whether the pension in dispute was or was not saleable in favor of the plaintiff. He ordered that a decree under Order 34, Rule 4, should be prepared for recovery of the amount out of the properties in the hands of the various defendants. An appeal was preferred to the High Court, and that judgment was set aside and the suit was remanded to the Court of first instance. This time the suit was disposed of by Mr. Bam Chand Saksena, who decreed the claim against the properties purchased by the various defendants as detailed in the plaint. He added that the amount decreed will be a charge on the properties purchased by the defendants. He further directed that a decree should be prepared according to Rule 4 of Order 34, Civil Procedure Code, six months time being allowed for payment. The learned Subordinate Judge seems to have accepted the findings arrived at by his predecessor, although the whole suit had been remanded, and he only dealt at length with the question of the proportionate liability of the various defendants. The decree-holder appealed to the High Court, and Mt. Bijja Begam and another defendant filed certain cross-objections. By the judgment of the High Court the amounts were slightly varied, but the decree was not set aside nor was the order of the Court that a decree under Order 34, Rule 4 be prepared in any way upset.
2. The decree holder is now seeking to recover the amount decreed to him by sale of the pausiou in the hands of Mt. Bijja Begam. The learned Subordinate Judge ha3 held that this pan3ioa is not attachable, and therefore cannot be sold. He has, therefore, dismissed the decree-holder's application.
3. In our opinion the question whether a certain pension is of such a character as not to be liable to be sold is a mixed question of law and fact. If the point was expressly raised by the defendant concerned in the suit itself and decided against her, and a decree under Order 34, Rule 4, was passed for the sale of that pension, it no longer remains open to the judgment-debtor to say that the pension was of such a character as not to be saleable at all. It would not be proper for the execution Court to reopen the question which has already been decided in the original suit. Of course, if the question had not been decided at all the execution Court were called upon for the first time to consider whether it would proceed to soil the property, which, either on the face of it or admittedly, was not saleable, there might be some force in the contention that the Court would not be justified in selling it. But the case here is quite different and we think that the question, which depended on a consideration of a number of facts, should not now be allowed to be reopened. We may note that in the Full Bench case of Mubarak Hussain v. Ahmed : AIR1924All328 , two out of the three learned fudges held that in cases where no attachment is necessary, and the sale takes place in pursuance of a mortgage decree directing a sale of the mortgaged property. Section 60 of the Code of Civil Procedure will not be applicable so as to prevent the Court from soiling the property.
4. The learned Vakil for the respondent has drawn our attention to the judgment of a single Judge of this Court which was afterwards affirmed in appeal under the Letters Pattent in the case of Mazhar Ali Khan v. Mahfuz Hasan A.I.R. 1922 All. 429 where the learned Judge referring to the final judgment referred to above remarked at pages 698 and 699 that the question whether a particular piece of property in the hands of the defendant was 'attachable' was irrelevant in the suit, which was brought to determine the liability of that defendant, and he felt satisfied that the point was not decided by anybody so as to be binding upon the parties. That judgment, however, was between the decree-holder on the one hand and Mahfuz Hasan on the other, to which Mt. Bijja Begam, the present respondent, was not a party. It is, therefore, obvious that Mt. Bijja Begam cannot take advantage of that judgment as if it were res judicata. The remarks in that judgment must be considered to be obiter dicta so far as the present litigation is concerned.
5. We have already said that a decree under Order 34, Rule 4, was prepared, and it is, therefore, obvious and that there has not been any question of an ' attachment' of the pension, but only whether the charge was enforceable against this property.
6. Considering the case on the merits we are satisfied that this pension is saleable. It may be that in the case of Mazhar Ali v. Mahfuz Hasan A.I.R. 1922 All. 429, the decree-holder could not adduce sufficient evidence to satisfy the Court that the pension was saleable. In the present case, however, there is plenty of documentary evidence on the record which points to that direction. This pension is entered in the register which was prepared for entering pensions coming under Section 7(2) of the Pensions Act (No. 23 of 1891), which are expressly declared to be transferable. The learned Subordinate Judge says that this pension was entered wrongly in this register. There seems to be no ground, however, for suspecting that it was so. The reason given by the learned Subordinate Judge is that this pension was granted under an order of 1887, but the register itself shows that this pension was certainly of an earlier date. In a judgment, dated the 27th of May, 1896, which was delivered in a suit between Khuda Bakhsh the mortgagee and Mt. Alimunnisa, a representative of the mortgagor, it was expressly decided that the pension which had been previously mortgaged was transferable. That judgment shows that the pension was granted at least as early as 1886. This judgment was affirmed on appeal on the 26th of August 1901. Subsequently there was another litigation between Khuda Bakhsh on the one hand and Alimunnisa on the other in which on the 10th of October 1906, there was a similar finding. The predecessors-in-title of the parties were parties to those suits and, therefore, even if those judgments do not operate res judicata they are certainly admissible in evidence.
7. There is the further fact that these pensions have been transferred from one person to another. Mt. Bijja Bagam, the objector, is herself a transferee of the portion in her hands, and so is the decree-holder Mazhar Ali. There are also other transferees of this pension.
8. Having regard to all these circumstances we are convinced that this pension was not a political pension which is declared to be non-transferable under Section 11 of the Pensions Act.
9. The result therefore, is that this appeal is allowed the decree of the Court below set aside, and the objection of Mt. Bijja Begaru dismissed with costs.