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Ram Nandan Dhar Dube Vs. Musammat Kaniz Fatima Bibi - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in39Ind.Cas.902
AppellantRam Nandan Dhar Dube
RespondentMusammat Kaniz Fatima Bibi
Cases Referred and of Aghore Nath Mukerjee v. Kamini Debi
Excerpt:
res judicata, constructive - mortgage suit--property held inalienable--execution--similar property, whether can be attached. - - the objection taken by the judgment-debtor, however, is that the property now sought to be attached in execution was included in the same sanad as the village of bariar, and was granted by the government to the predecessor-in-title of the judgment debtors under precisely the same conditions as the village of bariar......the property now sought to be attached and brought to sale. the question, however, is whether the decree-holder appellant is so bound by the decision arrived at in the present suit itself, with regard to the village of bariar, that he cannot contend that the property now sought to be attached is capable of alienation and can be brought to sale in execution of a decree. the case has been very fully and satisfactorily argued before us on both sides and we have been referred to a great deal of case-law on the subject. it may be observed that the question is not one of the operation of section 11 of the code of civil procedure, strictly speaking, but rather of the principle of res judicata independently of that section. the decision pleaded by the judgment-debtors as binding upon the.....
Judgment:

1. This is an appeal by a decree-holder in an execution proceeding. The essential facts are as follows. The owner of certain property in the Gorakhpur district mortgaged his rights in a village called Bariar by a deed of June the 19th, 1902. In the year 1908, a suit was brought upon this mortgage. There were a number of defences raised. One of the defences was that the mortgagor was not the full owner of the property mortgaged and had no right to transfer the same. The position taken up was that the village of Bariar formed part of a grant, originally made by the Government, which was of the nature of a political pension. The issue framed on this point when the suit went to trial was issue No. 2: 'Is the mortgaged property transferable and can the plaintiff get a decree for possession as a mortgagee?' The finding was that the mortgaged property was not transferable, and it must be conceded that this finding proceeded upon the ground that the land in suit was held as a grant under a sanad from the Government and that the property so granted was of the nature of a political pension and was not alienable at the pleasure of the grantee. The Court accordingly refused to give the plaintiff mortgagee a decree, either for mortgagee possession, or for sale of the mortgaged property, but passed a simple money-decree recoverable from any of the judgment-debtors. In execution of this decree the appellant now before us has attached. certain property of the judgment-debtor and seeks to bring it to sale. The property so attached is not in the village of Bariar and was not the subject-matter of the mortgage adjudicated upon in the suit itself. The objection taken by the judgment-debtor, however, is that the property now sought to be attached in execution was included in the same sanad as the village of Bariar, and was granted by the Government to the predecessor-in-title of the judgment debtors under precisely the same conditions as the village of Bariar. It so happens that the question of the nature of the grant made by the sanad in question has in the meantime been before this Court in a proceeding not between the same parties who are now parties to this appeal. In that case, which will be found reported as Kaniz Fatima Begam v. Sakina Bibi 25 Ind. Cas. 120 ; 12 A.L.J. 437 ; 36 A. 318 it was decided that the property in question was not of the nature of a political pension and was susceptible of alienation, either by the owner or owners for the time being, or in execution of a decree against such owner or owners. If, therefore, this question is to be tried out in the present execution proceeding, the Court determining it will presumably follow by way of precedent the opinion expressed by this Court in the reported case, and will arrive at the same conclusion in respect of the property now sought to be attached and brought to sale. The question, however, is whether the decree-holder appellant is so bound by the decision arrived at in the present suit itself, with regard to the village of Bariar, that he cannot contend that the property now sought to be attached is capable of alienation and can be brought to sale in execution of a decree. The case has been very fully and satisfactorily argued before us on both sides and we have been referred to a great deal of case-law on the subject. It may be observed that the question is not one of the operation of Section 11 of the Code of Civil Procedure, strictly speaking, but rather of the principle of res judicata independently of that section. The decision pleaded by the judgment-debtors as binding upon the decree-holder was not a decision arrived at in another suit or proceeding between the same parties, but a decision in the very suit itself which resulted in the decree now under execution. The case is, therefore, strictly analogous to the two reported cases of Mungul Pershad Dichit v. Grija Kant Lahiri 8 C. 51 ; 11 C.L.R. 113 ; 8 I.A. 123 ; 4 Sar. P.C.J. 249 ; 4 Ind. Dec. (N.S.) 32 (P.C.) and of Bam Kirpal v Rup Kuari 6 A. 269 ; 11 I.A. 37 ; 4 Sar. P.C.J. 489 ; 3 Ind. Dec. (N.S.) 718 (P.C.). When this has been said, however, the question is not by any means concluded. The position taken up by the decree-holder is that his present application is not inconsistent, either with the terms of the decree, or with the finding on the particular issue already stated upon which that decree proceeded. We have been referred on his behalf to a number of ruling. With regard to one of these, Natesan Chetty v. Vengu Nachiar 3 Ind. Cas. 701 ; 33 M. 102 ; 6 M.L.T. 313 ; 20 M.L.J. 20. We are content to say that it is certainly in favour of the present appellant; but the law as there stated goes somewhat beyond what we should be prepared to affirm. Another case, namely, that of Baij Nath Goenka v. Pudmanand Singh 14 Ind. Cas. 124 ; 39 C. 848 ; 16 C.W.N. 621 ; 16 C.L.J. 154 seems to turn upon the very limited scope of the particular decision pleaded as binding in that case. There are, however, two cases which have been brought before us which seem to us to bear directly on the question for determination and to lay down sound principles of law on which our decision ought to proceed. These are the cases of Mangalathammal v. Narayqnswami Aiyar 30 M. 461 ; 17 M.L.J. 250 and of Aghore Nath Mukerjee v. Kamini Debi 6 Ind. Cas. 554 ; 11 C.L.J. 461. The head-note to the former of these decisions is perhaps a little misleading, unless reference be made to the body of the judgment in order to make it clear, how the words 'provided the decision in the latter suit does not in any way question the correctness of the former decree' are to be understood. In the present case the decree-holder does not seek in any way to avoid the operation of the decree which he is seeking to execute. He is not attempting to touch any of the mortgaged property. We think also that, within the meaning of the decision of the Madras High Court above referred to, he is not calling in question the correctness of the decision in the suit itself upon the issue to which we have already referred; that is to say, he submits to that decision by refraining from attempting to execute his decree against the mortgaged property. It is true that he relies upon a plea which can only be supported by arguments calculated to prove the said decision to be erroneous; but this is not the same thing as saying that the decision is not binding on him. In the Calcutta case referred to above the law is laid down as follows: 'The rule against re-agitating matters adjudicated is subject generally to this restriction, that however essential the establishment of particular facts may be to the soundness of a judicial decision, however it may proceed upon them as established, and however binding and conclusive the decision may, as to its immediate and direct object, be, those facts are not all necessarily established conclusively between the parties, and, that either may litigate them for any other purpose as to which they may come in question, provided the immediate subject of the decision be not attempted to be withdrawn from its operation so as to defeat its direct object.' We have endeavoured to apply this principle to the facts of the present case and it seems to us that, in attaching other property of his judgment-debtors, outside the property mortgaged to him, in respect of which alone the Court was called upon to adjudicate in the suit itself, the decree-holder is not seeking to defeat the object of the decree. He can fairly claim that he is merely executing it according to its terms, and that he is entitled to ask the Court for an adjudication, independently of the decision arrived at in the suit itself, as to whether the property now attached by him is or is not capable of being sold in execution of the decree. We must, therefore, accept this appeal and reversing the decision of the lower Appellate Court remand the case to the Court of first instance in order that the execution may proceed according to law. The decree-holder appellant is entitled to his costs here and in the Courts below including in this Court fees on the higher scale.


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