1. This is an appeal by the defendants against whom a personal decree under Order 34, Rule 6, Civil P.C. has been passed by the Court below.
2. The facts which have given rise to this appeal are as, follows: On 15th November 1915, Ahmad Huisain, Hamid Huisain, Mt. Maqbul-un-nissa and Anwar Husain sold some immovable property to Mool Chand, Babu Ram, Makhan Lal and Raghunath Das, for a sum of Rs. 12,266. Out of this, a sum of Rs. 3,030 was left with the vendees for payment to one Moti Lal, a creditor of the vendors. The vendees did not pay the said amount to Moti Lal and the vendors thus obtained the right to recover the amount of unpaid purchase money from the vendees. This right was sold to Imam Ullah the present plaintiff 1.
3. On 16th November 1921, Inam Ullah together with the original vendors brought suit No. 220 of 1921, in the Court of the Subordinate Judge of Budaun for recovery of a sum of Rs. 3,030 together with Rs. 2,727 as interest against Mool Chand Babu Ram, Makhan Lal and Raghunath Das by sale of the property which had been sold to them and it was also prayed that if the property aforesaid be not sufficient for the amount claimed, then the plaintiffs may be allowed to recover the amount from the person and other property of the defendants. On 20th March 1922 the suit was decreed and it was said that indefault of payment, the property comprised in the sale-deed or a sufficient part of it should be sold. No issue was struck on the question of the plaintiffs' right to recover any portion of the decretal amount from the person and other property of the defendants, nor was there any discussion in the judgment on that point. The decree that was framed was on a printed form and the printed words 'if the sale proceeds be printend words 'if the sale proceeds be entitled to obtain a personal decree' were scored out.
4. On 16th October 1922, a final decree for sale was prepared and in execution thereof the property was sold on 28th November 1923, for Rs. 1,550 and the sale, notwithstanding the defendants' application to set it aside, was confirmed on 8th December 1925, by the executing Court. On 12th December 1925, Inam Ullah applied for the preparation of a personal decree under Order 34. Rule 6, Civil P.C. against the vendees. The learned Subordinate Judge on 6th March 1926. dismissed the application of Inam Ullah for the preparation of a personal decree and on 8th June 1926, Inam Ullah, filed First Appeal No. 296 of 1926, in the High Court against the order refusing to prepare a final decree. Before this appeal could come up for hearing, the vendees appealed to the High Court against the order of the executing Court dated 8th December 1925, confirming the sale in favour of Inam Ullah and on 21st December 1926, the High Court allowed the appeal of the vendees against the order refusing to set aside the sale and directed a fresh sale to be held. This second sale took place on 20th October 1927 and the price that was fetched at the auction-sale was Rs. 4,400.
5. First Appeal No. 296 of 1926, came up for hearing in this Court on 28th May 1929 when a preliminary objection was taken on behalf of the defendants-respondents. The plaintiff, Inam Ullah. therefore took time to apply for the amendment of his application) dated 12th December 1925, for the preparation of a decree under Order 34, Rule 6 on the ground that as by reason of the fresh sale a larger amount was obtained, the amount for which the personal decree was to be passed should be decreased from Rs. 6,666-12-0 to Rs. 5,088-7-6. Babu Ram and others objected to the amendment being granted on the ground that the original application for the preparation of a personal decree was based upon a sale that took place on 28th November 1923. That was confirmed on 8th December 1925, and as the said sale was set aside by the High Court on 21st December 1926:
all proceedings incidental thereto and consequent upon such sale including the application for preparation of a personal decree were ipso facto swept aside and Inam Ullah could not; legally ask for amendment of an application) that has become ineffectual and inoperative.
6. It was said that Inam Ullah could not be allowed in law to convert a cause of action that arose in 1925 into one that accrued in 1927 and:
make his application of 12th December 192S relate prospectively to an event that happened about two years later.
7. The defendants alleged that several questions required determination and could be gone into only when a fresh application on the basis of the subsequent sale was made. This matter came up for hearing before this Court on 24th October 1929, and it was held that the defendants' contentions were valid and the amendment could not be granted. The learned Judges said that:
first sale having been set aside, subsequent proceedings under Order 34, Rule 6 automatically fell through
and the result was:
that the parties were relegated to the position which they occupied immediately after the final decree was passed.
8. The plaintiff's application for amendment having been rejected, the plaintiff made an oral request for the withdrawal of his appeal and the learned Judges acceded to this request. The result was that First Appeal No. 296 of 1926 was dismissed with costs on 24th October 1929. On 11th August 1930, Inam Ullah applied for preparation of a personal decree under Order 34, Rule 6 against Babu Ram, Mt. Hira Kunwar, widow of Mool Chand, Makhan Lal and Raghunath Das for the recovery of a sum of Rs. 5,404-8-0. Babu Ram and others objected on the ground that the decree-holder was not entitled to a personal decree and that the application was barred by the rule of res judicata. The Court below repelled the objections of the defendants and directed that a decree under Order 34, Rule 6 be prepared against the judgment debtors, Babu Ram, Makhan Lal, Raghunath Das and the assets of Mool Chand in the hands of Mt. Hira Kunwar. The defendants have appealed. They contend that the present application was barred by the principle of res judicata, that the appellants were not personally liable, and that the application was barred by time.
9. The plea of res judicata, asserting that the plaintiff's right to obtain a personal decree has been negatived previously, is taken with reference to two proceedings. It is said that when the plaintiff brought suit No. 220 of 1921. he definitely claimed a relief to the effect that if the property, the sale of which was claimed, be not sufficient for the amount of the suit, then the plaintiff may be allowed to recover the amount of the suit from the person and other property of the defendants and as this relief was not granted, the plaintiff is not entitled to obtain the same relief at a later stage of the suit. We are of the opinion that this contention is not sound. In Musaheb Zaman Khan v. Inayatullah (1892) 14 All. 513, the learned Judges observed 'that although:
it is true...that...a general form of plaint for a suit for sale under a mortgage, does include in its prayers for relief a prayer that if the proceeds of the sale of the mortgaged property shall not be sufficient for payment in full of the amount to be ascertained, the defendant should pay to the plaintiff the amount of the deficiency.... The more correct way of drawing up a decree in a suit for sale on a mortgage would be to confine the decree for sale, i.e., the first decree to be passed to a decree under Section 88 against the mortgaged property, and that any subsequent relief to which, after that decree had been executed...the plaintiff was entitled, should stand over for a decree under Section 90.
10. They went on to say:
In our opinion Section 13, Civil P.C. would not apply to an application under Section to for a decree, no matter whether the plaintiff had or had not claimed originally in his suit subsequent relief, or whether, if claimed, such subsequent relief had been allowed or disallowed by the Court when making the decree under Section 88, the time for adjudicating on the claim for subsequent relief not arriving until the decree under Section 88 had been exhausted.
11. In Uttam Isholk v. Phulman Rai (1905) 2 A.L.J. 379, Banerji, J., held that:
In such a suit although the plaintiff may properly claim a personal decree against the defendant, the Court in making its decree under Section 88 should confine the decree to one for sale of the property.
and the learned Judge referred to Musahab Zaman Khan's case with approval. It is however contended by the appellants that form No. 128 which was a general form of decree for sale in a mortgage suit under the Transfer of Property Act, of 1882, is very different from form No. 4 in Schedule 1, Civil P.C. for whereas the previous form was confined strictly to a decree under Section 88, T.P. Act. and did not include any sub sequent relief, the present form contemplates the inclusion of a statement to the effect that if the net proceeds, of the sale are insufficient to pay the amount, the plaintiff shall be at liberty to apply for a personal decree for the amount of the balance; but this simply means that it is open to a Court, while deciding the suit, to adjudicate upon the right of the plaintiff and implies that if the Court so chooses, it may decide whether the plaintiff will or will not be at liberty at a later stage to apply for a personal decree. There can be even now no doubt that the appropriate time for such an adjudication is when the sale has been held and the net proceeds of the sale have been found to be insufficient. The amount for which the personal decree is to be given cart under no circumstances be determined till, after the sale has taken place and before this stage is reached, the Court can at best determine the abstract right of the plaintiff to obtain a personal decree. Where therefore as in the president case, the Court has not struck an issue on this abstract right of the plaintiff and has not decided the same, it cannot be said that when the sale has taken place, the plaintiff is precluded from obtaining a personal decree after the sale, if he is otherwise entitled. The form of the decree has now received a further modification and it, runs as follows:
The plaintiff shall be at liberty (where such remedy is open to him under the terms of his mortgage and the law for the time being in force) to apply for a personal decree against the defendant for the amount of the balance.
12. Reliance is placed by the learned Counsel for the appellants on the case of Uttam Ishlok Rai v. Ram Narain Rai (1906) 28 All. 365, which was an appeal under the Letters Patent from the decision in Uttam Ishlok v. Phulman Rai 2 A.L.J. 379 wherein the learned Judges referred to the case in Mushahed Zaman Khan v. Inayatullah (1892) 14 All. 513, and said that they did not disagree with the view taken in that case, but added that where a party entitled to a charge claims not merely a remedy against the property, the subject-matter of the charge, but also a personal remedy against the owner of that property, it was not premature to decide the question of liability on the hearing: of the original suit and if this question has already been the subject of determination at the former trial, the rule in Mushahed Zaman Khan v. Inayatullah (1892) 14 All. 513 was too broadly stated. It would therefore appear that, the Court can, if it so chooses, determine this question at the hearing of the original suit but it, is not bound to do so, and if it has refrained from deciding the question, although a claim was made in the plaint, it cannot be said that a subsequent claim to that effect at a later stage is barred by res judicata. Mr. Panna Lal has referred us to the cases of Jauna Bahu v. Parmeshwar Narayan 1918 P.C. 159, Mukhram Agarwala v. S. Ehsan Ahmad 1934 Cal. 764, Ram Nath v. Nageshur Singh 1930 Oudh 378, Ishar Das v. Maya Mal 1933 Lah. 329 and Maqbool Ahmad v. Dinga Prasad 1933 Oudh 352, wherein it has been held that, if there is a composite decree, that is, a decree for sale, containing a declaration that if the net proceeds of the sale are insufficient to pay such amount, the plaintiff shall be at liberty to apply, for a personal decree for the amount of the balance, there is an adjudication which is detrimental to the defendant and if the defendant does not appeal from it, he is under Section 97, Civil P.C. precluded from disputing its correctness afterwards. Yet there are observation's in some of these cases that the personal relief against the mortgagor can be asked generally only when proceeds of the sale prove insufficient and that a composite decree like this may be valid, but it is usually improper. All these cases only go to show that where the right of the plaintiff to obtain a personal decree has been decided, the parties will be bound by such decision. We have not been referred to a single case wherein it has been held that if there has, been no decision on the point and if the plaintiff had claimed for such a relief in the plaint, the plaintiff would be barred from claiming it under Expln. 5, Section 11. Expln. 5 would not apply unless the relief claimed was such as it was obligatory on a Court to grant and the cases, including cases of this Court, to which reference has already been made show that it is not obligatory for a Court to grant the relief in the nature of a personal remedy at the time of the original suit. In Govindasamy Koundan v. Kandasamy Koundan 1927 Mad. 779. it was held:
that the fact that the personal remedy is asked for in the plaint and that nothing appears about it in the decree, is not enough to say that the plaintiff is for ever after barred from asking for it.
13. We might mention that in the written statement the defendants nowhere alleged that the plaintiff was not entitled to a personal decree.
14. It is then said that the plaintiff did once on 12th December 1925, ask for a personal decree and the Court on 6th March 1926. refused the plaintiff's, application. The plaintiff's appeal, against this decision having been dismissed on 24th October 1929, the plaintiff is at all events now debarred from claiming a personal decree by his present application. This is the second proceeding with reference to which the plea of res judicata is taken and strong reliance is placed on the case of Hook v. Administrator General of Bengal 1921 P.C. 11, where their Lordships held that Section 11, Civil P.C. is not exhaustive of the circumstances in which an issue is res judicata and it was observed that the binding force of an adjudication at one stage of the suit depends not necessarily upon Section 11, but upon general principles of law and that if it wore not binding, there would be no end to litigation. In an administration suit it was held that a certain gift over was invalid as creating a perpetuity and in further proceedings in the suit the validity of the gift over was attempted to be re-agitated and their Lordships held that this could not be done. We have, in an earlier portion of our judgment, referred at some length to the circumstances under which the plaintiff withdrew his appeal and we are of the opinion that as a result of the decision by the High Court, the plaintiff's right to obtain a personal decree has been expressly reserved and that the defendants cannot be permitted to say that the plaintiff should not now be allowed to claim a personal decree on the ground of res judicata, if under the law he is entitled to it. The first sale after which the claim was made for a personal decree was set aside by the High Court. The plaintiff had appealed against the decision of the learned Subordinate Judge, disallowing the plaintiff's application far a decree under Order 34, Rule 6, and the defendants raised a preliminary objection that the appeal had then become infructuous and when the plaintiff wanted to amend his application, they strenuously resisted the same and this Court definitely said that by reason of subsequent, events the, parties had been relegated to the position which they occupied immediately after the final decree was passed. In our opinion the defendants cannot be permitted to take up now a contrary position on general principles of law and. it anything has been decided between the parties by this Court it is that the plaintiff has obtained a fresh right to apply.
15. We now proceed to decide the question whether the plaintiff can obtain a personal decree. Mr. Panna Lal contends that under Section 55, Clause (4), Sub-section (b). T.P. Act, the plaintiff has is charge upon the property sold to the defendants to the extent of the unpaid purchase money and he must confine himself to that property alone; he cannot claim any relief against the person and other property of the defendants. He has however to meet the provisions of Section 100, T.P. Act, which provides that:
Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the-property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge,
16. If a charge holder has all the right of a simple mortgagee, he can, when the net proceeds of the sale have proved insufficient and if the balance is legally recoverable from the defendant, claim a personal decree for such amount. It is said that where a charge has been created by operation of law the charge holder is not clothed with the rights of a simple mortgagee qua a personal remedy. Reliance is placed on the case of Corporation of Calcutta v. Arun Chandra Singh 1934 Cal. 862, but the facts of that case wore entirely different. Their Lordships held that Section 67-A. T.P. Act, did not apply where a charge has been created under section 205. Calcutta Municipal Act, Reference was also made to the judgment of Richards, J., in Uttam Ishlok v. Phulman Rai (1905) 2 A.L.J. 379, but Banarji, J., the other member of the Bench, was of a contrary opinion and we feel inclined to agree with his view for the reasons given by him. It is worthy of note that there was an appeal against this decision and although the decision of the Letters Patent Bench proceeded on a, different point Stanley, C.J., observed that if it were necessary to determine the question of the right of a charge holder to obtain a personal decree they would have difficulty in resisting the forcible reasoning to be found in the judgment of Banerji, J. It is conceded that if the plaintiff had brought a suit in the first instance for the recovery of the unpaid purchase money from the defendants personally, there could have been no defence. In the sale-deed in favour of the defendants there was an express stipulation that Rs. 3,030 was being left with the vendees for payment to one Mool Chand a, creditor of the vendors. In India agreements between two contracting parties are evidenced by the execution of a single document by one of the parties alone and yet if the contract has been agreed upon the parties are bound by the rights conferred and the liabilities imposed by the document. The defendants therefore must be deemed of Rs. 3,030 to the creditor and as they broke the contract, the article applicable would be 116 of the Limitation Act, the document being a registered one and the period of suit would be six years. Article 111, Limitation Act, would not be applicable because that applies to a simple case where the vendee has not paid a portion of the purchase money to the vendor and not where be has broken a contract to pay the same to a creditor of the vendor. There can be no doubt that the vendee made himself personally liable and the amount therefore is legally recoverable within the meaning of Order 34. Rule 6, and mere fact that a charge also has been created by operation of law does not disentitle the charge holder from pursuing the personal remedy.
17. Mr. Harnandan Prasad on behalf of the respondent has referred us to Raghukul Tilak v. Pitam Singh 1931 All. 99. This case fully supports the respondent both on the point of res judicata and on the question of the plaintiff's right to obtain a personal decree. It was held that where title has passed to the purchaser as the result of the purchase, the purchaser is personally liable for the purchase money under Section 55(5), Clause (b). T.P. Act, irrespective of the personal liability created by the sale-deed and that this personal liability is apart from the liability imposed on the property purchased by him under Section 55(4), Clause (b). The learned Judges said that where a charge is the result of a contract, there may also be a personal remedy to be found. While discussing the plea of res judicata they observed as follows:
The question of res judicata arose in this way. The plaintiff when he brought his suit appended relief (b) to his plaint:
If the proceeds of the sale be insufficient to pay up the decretal amount due to the plaintiff at the time, he may be authorised to apply for a decree for the balance.
Exception was taken on behalf of the defendants to the reliefs sought by the plaintiff. But nothing specifically was said about the particular relief which we have quoted above. No issue was framed.... The learned Judge who tried the case does not mention even the existence of this relief in his judgment. Ha contented himself with passing a decree under Order 34, Rule 4, Civil P.C. The decree that was framed, followed the form No. 8 series (d) appended to Schedule 1 and gave the plaintiff liberty to apply for a personal decree for the amount of the balance.
On behalf of the appellants it has been contended that this decree having become final, the plaintiff's right to apply under Order 34, Rule 6 has been recognized once for all and the decree can not be departed from.
We are of opinion that Section 11, Civil P.C. does not in terms apply to this case. The present proceedings are only a part of the original proceedings and it cannot be said that the matter was decided either specifically or by implication in a previous suit. The rule of res judicata has been applied to subsequent proceedings when the points raised in the subsequent proceedings were raised in the earlier proceedings and were specifically decided. In the circumstances we do not think that we are in a position to apply the rule of res judicata and to hold that the plaintiff's right has been settled once for all and in his favour.
18. The case before us is, if anything, stronger on facts and we also, as we said before, are not prepared to hold that the plaintiff's right has been so settled once for all when the preliminary decree was passed against him. We are therefore of the opinion that the plaintiff is entitled to a. personal decree and there is no bar either of res judicata or of any other principle of law to his obtaining such a decree.
19. Finally it was contended that the plaintiff's application for the preparation of a final decree was barred by time. There is no force in this contention. As stated before the article applicable to the facts of the present case is Article 116, Limitation Act. The sale-deed was executed on 15th November 1915, and the suit was brought within six years of that date on 16th November 1921, because 15th November 1921 was a holiday. For the reasons given above, we have come to the conclusion that the decision of the Court below is correct and we dismiss this appeal with costs.