1. This is an appeal in an execution matter raising a short but interesting point of law. The applicant or decree-holder had recovered judgment in a suit for contribution against several co-mortgagors including the defendant, the present-appellant, Mahfuz Hasan, No. 12 in the application for execution and No. 15 in the array of defendants in the original suit, and he applied in the Execution Court for attachment or sale of certain property, mentioned in column 10 of the application, in discharge of the liability which had been declared against the defendants in the suit, and included in the details under column 10 was Item No. 3 described in the following words:--'Rs. 125 annual amount of pension under political treaty, which is realised from the Treasury of District Moradabad and which was granted under the order of the Board of Revenue, United Provinces of Agra and Oudh, forming part of Rs. 206 8-11.' The statement of the figures appears to be incorrect. The amount given is an annual amount, The pension papers disclose an annual pension of Rs. 26-8 11 or Rs. 13 4 5 half yearly. It may be that, as Mr. Riza Ali for the appellant suggests, the warrant before me is only one warrant for payment out of several representing the total pension, or it may be that the applicant's description was incorrect. I am only dealing in my judgment with the pension warrant before me. If any further question arises about any other pension warrants, the Court must be guided by my judgment in this case. An objection was raised by the judgment debtor that the political pension which the decree-holder wanted to sell was not saleable and not liable to execution. The Execution Court has held that this objection has no force and that the matter was decided in the original suit and that this decision is binding on the parties.
2. I do not agree with this view. I am inclined to think that the question whether a particular piece of property in the hands of the defendant is attachable, is irrelevant in a suit which is brought to determine the liability of that defendant, but looking at the long history of the litigation in the suit I am quite satisfied that the point was not decided by anybody so as to be binding upon the parties. The history of the matter is this. The plaintiff brought his suit for contribution and succeeded in the First Court in May 1912, and the defendant in that suit contended that he was not liable, and at any rate that his political pension could not be made answerable for any part of his liabilities. The Trial Court framed an issue on this point and decided it in favour of the plaintiff, giving as his reason that the present appellant, namely, the then defendant, was not the pensioner and that the pension did not come within Sections 11 or 12 of the Pensions Act of 1871. An appeal was brought to this Court and decided by the High Court on the 13th of March 1917 (First Appeal No. 350 of 1915), when the appeal was allowed on the ground that the Trial Court had altogether misunderstood the principles of a suit for contribution, and the suit was remanded to the first Court for retrial. It was re tried and decided in favour of the plaintiff by a judgment of the 31st of May 1915 by the same Judge who has dealt with this matter in the Execution Court. An appeal was again brought to this Court, which came before my brother Piggott and myself, and we made certain modifications in the decree of the lower Court with regard to the amount of the plaintiff's claim and the proportionate liabilities of certain of the defendants, and in that appeal a cross-objection was filed by the present appellant, objecting that the arrears or balance of the liability could not be charged upon his pension or pensions. We did not deal with that matter or deside it in any way. There is no evidence before me that it was urged upon us and that we held it to be irrelevant or, as is equally possible, it was not urged by Counsel on the ground that he could not do so with any hope of success. A point relevant to the liability in suit which has been taken or may have been taken and has been deliberately abandoned, cannot be reopened, but that principle does not apply to points which are irrelevant before decree, as I think this was. In my opinion, therefore, the Execution Court is wrong in saying that there was a binding decision upon the parties on the point. The judgment of the first Court at the first trial in 1912 has been reversed and no longer exists, and there is no judgment subsequent to the High Court's order directing a retrial in which this point has been decided or dealt with.
3. I, therefore, have to decide whether the objection is a good one or a bad one. At first sight there seemed to be a great deal to be said for the reasons given by the first Judge who dealt with the matter in 1912, but now that the payment warrant is before me, it seems to be conclusive on the question of fast whether this is a political pension or not within the meaning of Section 11 of Act XXIII of 1871, It is an official document issued by the Treasury Officer under the authority of the Assistant Accountant General to the Collector of Moradabad. It is headed 'pension payment order' and it is described as the 'pensioner's half,' no doubt, because it is issued to the pensioner himself. It gives the name of the pensioner as the present judgment-debtor. It gives his age and description and the amount of his pension as 'treaty political pension in perpetuity.' It contains a note under the authority of a Government order that payment under it is to be made only to the 'pensioner' with certain exceptions, and a red ink note in English, Urdu and Hindi that on the decease of the 'pensioner' this order shall be immediately returned by his family to the District Officer. The history of this pension is not before me. It is admitted by the judgment-debtor that he was not the original pensioner. Musammat Kundan is said to have been at one time the pensioner and she was succeeded, it is said, by transfer by one Musammat Alemunnisa, who in her turn was succeeded by the present judgment-debtor. Section 12 of Act No. XXIII of 1871 makes all assignments and sales, inter alia, of all pensions mentioned in Section 11 null and void. That can only mean that they are not binding on the grantor, in this case the Government. But it follows from that that the Government can, if they please, continue the pension to any descendant or transferee. It is idle to speculate whether the present transferee may be a lineal descendant or a blood relation of somebody for whom the Government had consideration and was willing to accept as the continuing pensioner, At any rate the fast that it was being paid in 1919 is conclusive evidence that it had not been nullified or avoided by the Government at the time when this decree was passed.
4. At the eleventh hour the respondent's Counsel urged upon me either to refer an issue to the first Court or to hold that this was a pension older in date than the Act of 1371 and granted by the Government before that Act so as to some within Section 7, Sub-section (2) of the Act, which makes such pensions capable of alienation or descent and liable to be sued for and recovered in the same manner as any other property. It does not seem to me that there is anything to try and, therefore, nothing which I can properly refer, The applicant never until this moment suggested that there was any question of fact which it was necessary to enquire into for the purpose of justifying his application for execution, and it would be simply speculation on my part to draw the inference either that it was or was not older than 1871. I find myself unable to come to any other conclusion than that it is a treaty political pension within the meaning of Section 11 of the Act and that the present application is an attempt by a creditor to seiza or attach it in respect of a demand against the pensioner. Such a proceeding is prohibited by Section 11 of the Act of 1871 and, therefore, the application ought to have been dismissed and the objection allowed. I allow the appeal and declare that this pension to which this document relates was, like any other political pension, payable to the judgment-debtor and is not attachable in pursuance of the creditor's decree. The appeal must be allowed with costs and the application of the decree-holder, so far as it relates to Item No. 3 of column 10 of his application, namely, the political pension, must be dismissed with costs in the lower Court.