1. Defendant 3 in the suit is the appellant in this matter arising in execution. On 1st May 1900 there was a mortgage of item 1 to defendant 3 and on 25th March 1901 there was a mortgage of items 1 and 2 in favour of plaintiff 1. Defendant 3 brought a suit, O.S. No. 219 of 1904, on his mortgage. A preliminary decree was passed on 13th June 1904 and the final decree was passed on 12th April 1905. In this suit he impleaded the 2nd mortgagee, the present plaintiff 1. The property was put up for sale on 5th August 1905 but there were no bidders. Defendant 3 bought the property by private sale from the mortgagor for Rs. 799. This was less than the decree amount and satisfaction for the sum was entered in E.P. No. 28 of 1928. Plaintiff 1, the 2nd mortgagee brought O.S. No. 317 of 1914 on his mortgage impleading the prior mortgagee, the present appellant, as defendant 3. He obtained a decree for sale of both the items. The decree directed that item 2 should be sold first and that item 1 should be sold subsequently subject to defendant 3's prior lien. In that auction the assignee decree-holder purchased the property. He put in a petition for delivery and got an ex parte order for delivery in his favour. Defendant 3 put in an application that as he was the 'first purchaser every right which had been obtained by the plaintiff as 2nd mortgagee was subject to his prior lien. The learned District Munsif disallowed his claim and his order was confirmed on appeal by the District Judge. Against this order this second appeal is filed.
2. The appellant relies on Venkatagiri v. Sadagopachariar (1912) 14 IC 449, Muhammad Elsman Rowthen v. Abdulla (1901) 24 Mad 171, Chinnaswami Padayachi v. Darmalinga Padayachi AIR 1932 Mad 566 and Ram Narain Sahoo v. Bandi Pershad (1904) 31 Cal 737, and also on a recent Full Bench case in Nagendra Chettiar v. Lakshmi Ammal AIR 1933 Mad 583, but I consider that they are not relevant to this case. All these cases are clearly distinguishable from the present for two reasons. In all these cases one of the mortgagees was not made a party in at least one of the suits, and secondly the purchase relied on for possession was one in Court auction. Here we have purely a private sale by the mortgagor to the mortgagee and no authority whatever has been quoted to show that the possession which the mortgagee obtained stands on a different footing from the possession of the mortgagor. The appellant is really driven to rely entirely on para. 2 of the decree in the plaintiff's suit 'subject to defendant 3's prior lien' and to argue that the defendant is entitled on this to remain in possession till his mortgage is redeemed. 19 Halsbury, p. 2. para. 1, is relied on for the general meaning of the word 'lien' where it is said that lien in its primary sense is a right in one man to retain that which is in his possession belonging to another until certain demands of the person in possession are satisfied. But 'lien' may be either possessory or non-possessory: vide Fisher on Mortgages, p. 392. See also 19 Halsbury, p. 4, para. 4. It is sought also to support this interpretation by Venkatarama Aiyar v. Rangiyan Chetty AIR 1924 Mad 449, but 'lien' in that case was said to mean all the rights of defendant 14 under his decree.' In that case defendant 14 bad got his decree even before the widow, the puisne mortgagee, had got hers. This case is no authority for saying that the lien spoken of in the decree here means anything more than what defendant 3 got under his decree. He had chosen to satisfy his decree so far as the property was concerned by private purchase and is only therefore in possession as representing his mortgagor, These considerations are in my opinion sufficient to dispose of the appeal.
2. The Full Bench case Nagendra Chettiar v. Lakshmi Ammal AIR 1933 Mad 583 is totally irrelevant as will be seen from the consideration placed in the forefront of the judgment:
The question now is who is entitled to possession until a regular suit is filed when the two mortgagees are brought face to face.
3. Here we have both the mortgagees face to face in both the suits. And if there is any conflict between the decrees they have obtained, then the principle laid down in Rukmani Ammal v. Narasimma Iyer AIR 1921 Mad 612 is applicable. There both the mortgagees were parties to both the suits, and Sadasiva Ayyar, J., held that
each having been impleaded, both are bound by both decrees on the principle that where the rights obtained under two decrees are in conflict with each other the rights under the latter decree must prevail.
4. In fact, on the appellant's own argument, the puisne mortgagee having been the first purchaser in Court auction he is the parson entitled to possession. I may perhaps note an argument as regards res judicata raised in favour of the respondent in the execution proceedings, particularly as there seems to be an incorrect statement on the point in the order of the learned District Judge which runs:
In the course of the execution proceedings prior to sale, the appellant filed no less than three petitions urging that his claim must be satisfied before the property was brought to sale; but his petitions were dismissed; and he filed no appeal against any of these adverse orders.
5. It is on this ground that the plea of res judicata is urged on behalf of the respondent. So far as can be made out not one of the execution petitions was filed by the appellant; E.P. No. 890 of 1923 was filed by the respondent and is summarised as follows:
States amount due to defendant 3 shall be fixed, but there is no necessity and the sale is held subject to his lien.
6. Then there is E.P. No. 1441 of 1925 put in by the respondent. The note is (appellant here appears by Mr. M.K.R.).
Order.-My predecessor in his order dated 5th March 192 in E.P. No. 890 of 1923 has ordered that there is no necessity to specify the amount due to defendant 3. The decree also does not specify it. The property will be sold subject to D's lien as mentioned in the decree. Sell on 24th November 1927. (Sale not held for want of bids). Previous E.P. one property was sold.
7. It would appear that the E.P. was put in by the respondent and the request to specify the amount was probably made by defendant 3's pleader. Then there is E.P. No. 143 of 1928 which was again by the respondent on which it is noted:
The only objection raised is that the amount due under D.'s lien should be fixed; similar objections were raised on prior E. Ps., viz. in E.P. No. 890 of 1923 and in E.P. No. 1441 of 1925, and there it was ordered that it was not necessary to specify the amount due to defendant 3 and that the property will be sold subject to defendant 3's lien as specified in the decree.
8. The objection was held to have failed. Constructive res judicata has got to be cautiously applied in the case of execution petitions and I would hesitate to say that defendant 3's claim to remain in possession until his mortgage was redeemed is barred by res judicata by reason of the orders passed on these petitions. No doubt the Court refused to find out how much was due to him, but it still sold the property subject to some lien which he was considered to have. The procedure, as remarked by the then District Judge, was quite wrong. He rightly says that
it should be the object of the Courts to avoid multiplicity of litigation. It would have been possible for the executing Court to have ordered the sale of the hypotheca free of encumbrances, with the direction that the appellant's claim should be met from the sale price.
9. I doubt whether under the circumstances one could say that the failure to do so rendered defendant 3's claim as to the possessory lien res judicata; but it is unnecessary to give a final opinion on that matter as I consider that the appeal must otherwise fail. It is dismissed with costs.