1. The facts of this case are these. The plaintiff, who is the respondent in this Court, with his brother Shibahai, obtained a us ufructuary mortgage from the ancestors of the appellants on 29th August 1905, On the same date, the mortgagors executed a rent-note, by which they agreed to pay to the mortgagees Rs. 7-12-0 per month as rent of the house mortgaged. Some time later, the mortgagees obtained a simple money decree against the mortgagors. In execution of that decree they attached the interest of the judgment-debtors in the house, viz., a right to redeem. The judgment-debtors objected and said that it was wrong to describe them as mortgagors and that they were the full owners of the house. They added that, they apprehended that if they were described as mere mortgagors, the property might fetch a small value. Notice was given to the decree-holders but they were not present when the application was disposed of. The execution Court held, by decision dated 29th April 1920, that the words ' mortgagor's interest' should be expunged. The house, however, was never brought to sale. I am told by the parties that some other property of the appellants was sold and that sale satisfied the simple money decree.
2. After all these had happened, the suit, out of which this appeal has arisen, was instituted by the respondent for recovery of the rent on foot of the registered rent-note. The suit was decreed by the lower Appellate Court and two points have been urged in appeal.
3. The fourth point in the grounds of appeal is that the lower Court was not justified in coming to the conclusion that the mortgage-deed of 1905 and the rent-note were not mere colourable transactions but were substantial ones. Mr. Aziz, however, conceded that the plea could not be urged as it went counter to the finding of the lower Appellate Court.
4. Mr. Aziz has, however, urged that the finding of the execution Court, dated 29th April 1920, operates as res judicata in the present suit and he cites the case of Dambar Singh v. Ealyan Singh 65 Ind. Cas. 799 : 20 A. L J. 170; (1922) A.I.R. (A) 27 : 44 A. 850.
5. Mr. Aziz has conceded that there is nothing on the record to show that the respondent mentioned the mortgage of 1905 as the mortgage by virtue of which his judgment-debtors were in the position of the mortgagors and the property was being sought to be sold subject to the mortgage of 1905. To start with, therefore, there is no decision that the mortgage of 1905 and the rent note of that date were fictitious transactions.
6. Assuming that all the necessary facts were found in favour of the appellants, it is clear to me that, the plea of res judicata cannot be sustained. The proceedings in which the objection was raised were under Order XXI, Rule 66 of the Civil Procedure Code; They were ministerial proceedings. More correctly speaking, they were non-judicial or quasi Judaism proceedings. The Court had to determine what were the properties to be sold and what were the incumbrances on the same. Any decision come to on those proceedings cannot operate as res judicata on the very point raised on a regular suit later on. In the case quoted, the question that subsequently arose, arose in the very execution proceedings in which the former finding had been arrived at.
7. The appeal fails and is dismissed with costs which will include fees in this Court on the higher scale.