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Kanhaiya Lal Vs. Banke Behari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All542
AppellantKanhaiya Lal
RespondentBanke Behari and ors.
Excerpt:
.....6th june 1934 it was ordered that it should be clearly notified in the sale proclamation that the charge under which the property was being sold was prior to the mortgage in favour of bachan lal. where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit. as she failed to do so, the decree against her became final......this refers to an english order of which no copy is produced. now learned counsel for mt. sundar kuer claims that this was an application under order 21, rule 58 and that it terminated in an order under rule 62 and that accordingly under the provisions of rule 63 that order would be final between bachan lal and mt. tulsa kuer, subject to bachan lal bringing a suit within one-year, and that as bachan lal brought no such suit, therefore he would be barred from raising the matter subsequently. now in the first place, assuming all this argument to be correct, this was a matter which should have been pleaded in defence by mt. sundar kuer, but mt. sundar kuer did not plead this as a defence in suit no. 741 of 1932. as she did not plead this in defence, in our opinion she is debarred from.....
Judgment:

Bennet, Ag. C.J.

1. This is a second appeal by a defendant against a decree of the lower Appellate Court in favour of the plaintiff, Mt. Sundar Kuer. The circumstances are that one Mt. Tulsa Kuer who was not a party to this litigation brought Suit No. 129 of 1926 for her maintenance and obtained a decree on 26th October 1926 for arrears of maintenance and Rs. 8 P.M. as future maintenance which was made a charge on the shares of the branches of Bindeshri Prasad and Kali Prasad. On 11th July 1928, Bindeshri Prasad executed a simple mortgage for Rs. 550 in favour of Bachan Lal. Mt. Tulsa Kuer in execution of her maintenance decree applied for sale of two annas share of a house and there was an auction sale and the property was purchased by Mt. Sundar Kuer. On 21st December 1932 Bachan Lal and his representatives brought a suit, No. 741 of 1932, for sale on his mortgage of 11th July 1928. Mt. Sundar Kuer was made a party to that suit. She did not defend the suit and an ex parte decree was passed against her. She then made an objection in execution that her two annas share was not liable for sale. The Courts below treated that objection as a suit under Section 47 and treated her as a plaintiff. The trial Court dismissed her suit and the lower Appellate Court has decreed her suit for a declaration that her property was not liable for sale. Now the first matter which arises is in what way Mt. Sundar Kuer was impleaded in Suit No. 741 of 1932. The lower Appellate Court sets out in regard to that point that it stated:

Mt. Sundar Kuer who had a share in the disputed house and was also a purchaser of the part of the mortgaged property was liable for its payment.

2. We are of opinion that this allegation in the plaint clearly was against her rights which she now claims to be exempt from this mortgage decree. Her claim for exemption is that because she purchased on what was the prior charge of the maintenance decree, therefore she is not liable for the subsequent mortgage charge. No doubt that would have been a perfectly good defence for her to put forward in the Suit No. 741 of 1932. She did not put that defence forward and when a decree was passed she did not make any appeal, nor has she asked for any review of judgment. Under these circumstances, the question is whether she can raise this matter again by a subsequent suit which is not a suit based on any allegation of fraud. Is she not barred by the rule of res judicata?

3. On her behalf it has been argued that there was an application made by Bachan Lal in the course of execution proceedings on the decree for maintenance. All that is on the record of the present suit is a copy of the vernacular order of 6th June 1934 and this refers to an English order of which no copy is produced. Now learned Counsel for Mt. Sundar Kuer claims that this was an application under Order 21, Rule 58 and that it terminated in an order under Rule 62 and that accordingly under the provisions of Rule 63 that order would be final between Bachan Lal and Mt. Tulsa Kuer, subject to Bachan Lal bringing a suit within one-year, and that as Bachan Lal brought no such suit, therefore he would be barred from raising the matter subsequently. Now in the first place, assuming all this argument to be correct, this was a matter which should have been pleaded in defence by Mt. Sundar Kuer, but Mt. Sundar Kuer did not plead this as a defence in Suit No. 741 of 1932. As she did not plead this in defence, in our opinion she is debarred from raising it now as the subject-matter of her present suit. Further, we do not think that the claim has been established that the order was one under Order 21, Rule 62. As the Court below sets out:

By an order dated 6th June 1934 it was ordered that it should be clearly notified in the sale proclamation that the charge under which the property was being sold was prior to the mortgage in favour of Bachan Lal.

4. Now, this appears to be an order in regard to the sale proclamation. A sale proclamation is drawn up under Order 21, Rule 66 and objections to the sale proclamation would be subsequent to the drawing up of the sale proclamation. In regard to Rule 58 and subsequent rules up to 63, there is a heading 'investigation of claims and objections' and Rule 58, Sub-rule (1) states:

Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit.

5. Now it will be noted that the procedure of a suit is to be adopted where an objection is made to the attachment on the ground that the property is not liable to be attached. The mere question of whether there was a prior charge would not be an objection to the attachment. Rule 59 provides for evidence to be adduced and Rule 60 provides for release of property from attachment and Rule 61 provides for disallowance of claim to property attached. In our opinion, it is when an inquiry is held and an order is passed under one of those Rules, 60 or 61, that there is an order which is conclusive under Rule 63 and without an inquiry there can be no such conclusive order. Rule 62 is a different kind of Rule and merely provides for the continuance of attachment, subject to the claim of an incumbrancer. Learned Counsel contends that the claim of Bachan Lal would come under this Rule. We do not think that in regard to such a claim there would be a conclusive order under Rule 63. Further, as already observed, it has not been shown that there was any inquiry held or evidence taken by the execution Court such as would result in an order under Rule 63. So far as the copy of the order shows, there was merely a summary order passed on an objection to the sale proclamation. There is no provision for such a summary order in regard to a sale proclamation to have any of the effects of an order under Rule 63. We consider therefore that on all these grounds this objection in regard to the order of 6th June 1934 is unsound. Learned Counsel for the respondent has invited our attention to the ruling reported in Radha Kishun v. Khurshed Hossein (1920) 7 A.I.R. P.C. 81. That ruling does not appear to deal with a case similar to the present. In that ruling, it is set out that a prior mortgagee has a paramount claim and, although made a party in a suit by a puisne mortgagee, need not intervene unless his mortgage is impugned. In the present case however the rights of Mt. Sundar Kuer were definitely impugned in the plaint as it was stated that she was liable for this simple mortgage. Moreover, Mt. Sundar Kuer was a purchaser at an auction sale and she was not the prior mortgagee. No doubt her claim would be that she, as purchaser at an auction sale on a prior charge, was entitled to hold this property free from the subsequent mortgage and to that extent her position may be somewhat parallel to a prior mortgagee; but where her interests are directly impugned, she must appear and defend the suit. As she failed to do so, the decree against her became final. It amounts therefore to res judicata and she cannot now in her present suit raise points which she might have raised in her defence in the suit on the subsequent mortgage. For these reasons we consider that the decree of the lower Appellate Court is incorrect and we allow this appeal with costs of this Court and of the lower Appellate Court and we restore the decree of the trial Court, dismissing the suit of the plaintiff; that is the suit of the plaintiff is dismissed with costs throughout.


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