1. This is an appeal on behalf of the decree-holder auction-purchaser and arises out of certain proceedings purported to have been made under Order 21, Rule 100, Civil P.C. A preliminary objection has been taken to the hearing of this appeal on the ground that no second appeal lies to this Court as this is not a matter which comes under Section 47, Civil P.C. The answer to this preliminary objection is furnished by a recent decision of this Court in the Full Bench case of Kailash Ch. Tarafdar v. Gopal Chandra AIR 1926 Cal 798 in which it has been laid down that where a question of delivery of possession is raised between the parties to the suit, the auction-purchaser decree-holder on the one hand and the judgment-debtor on the other, the matter comes under Section 47. The preliminary objection must therefore be overruled. In order to appreciate the points in controversy in the present appeal it is necessary to state a few facts. Defendants 1, 2 and 3 had mortgaged the disputed properties which form a portion of a tenure to the present appellant. The appellant brought a suit on the footing of the mortgage; in that suit there were impleaded as parties mortgagors defendants 1 to 3, defendants 4 to 7 who were purchasers of a portion of the mortgaged properties, defendants 8 and 9 on the ground that the mortgagors have set up a tenancy in their favour, and defendant 10 who is a mortgagee of a different portion of the same tenure.
2. The decree was passed on the footing of the mortgage. It appears that subsequent to the mortgage the landlord of the tenure in question obtained a decree for rent against the recorded tenants and ho claimed that he acquired a charge on the entire tenure under the provision of Section 171, Ben. Ten. Act, as against all the defendants. The defendant 8 happens to be the mother of defendants 1, 2 and 3, She mortgagors in the suit, and defendant 9 is their brother-in-law. The mortgage suit was contested by defendant 10 alone. The defence of this defendant was that the decree obtained by the landlord was not a decree for rent inasmuch as defendants 1,2 and 3 did not represent the tenancy. His contention further was that they (defendant 1 to 3) had another brother who died and that neither he nor his mother who succeeded to his estate on his death was made a party to the rent suit. The decree was not a rent decree and therefore there can be no charge in respect of the entire tenure under the provision of Section 171, Ben. Ten. Act. An express issue was raised on this question which formed Issue 2 in the suit. With reference to that issue it was decided that it was not satisfactorily proved that Hriday left four sons on his death, and that the evidence given for the defence was contradictory on this point and no reliance could be placed on it. In this view there was not only a mortgage decree against the defendant in respect of the mortgaged properties but the defendant was further directed to pay a sum of Rs. 126-3-3 and other debts Rs. 201-6-0 with proportionate costs and interests within a week and in default the sum was declared to be first charge on properties of schedule Kha which is included in the tenure. This decree for sale of the mortgaged properties against all the defendants including defendant 8 who is the respondent before us was apparently not appealed from.
3. When the appellant proceeded to take delivery of possession proceedings were started at the instance of defendant 8 purported to be under Order 21, Rule 100, Civil P.C. She contended that as there was a fourth son of Hriday and as she as his mother succeeded to the inheritance of the fourth son and as the fourth son was no party to the mortgage suit or did not join in the mortgage, she was claiming possession of 1/4th of the mortgaged properties of her own account and therefore to the extent of her possession in the 1/4th share she ought not to be dispossessed. It has been argued on behalf of the decree holder that this contention could not be raised in these proceedings seeing that defendant 8 who was a party in the mortgage suit did not raise this contention which she ought to have raised. The contention really was that this was a matter which ought to have been made a ground of attack in the suit itself and it not having been raised on principles analogous to the principle of res judicata the question ought not to be allowed to be raised in the present proceedings. This contention of the decree-holder however did not prevail with the Munsif who tried the matter in the first instance and the application under Order 21, Rule 100, Civil P.C., was allowed. An appeal was taken to the Court of the District Judge of Bankura who took the same view as the Munsif and he confirmed the decision of the Munsif. The present appeal is directed against the concurrent judgments of the Courts below.
4. It is contended on behalf of the appellant that both the Courts below committed an error of law in allowing this question, namely, as to whether Hriday had a fourth son and whether such a son was interested in the mortgaged properties to be raised in these proceedings on the principle analogous to res judicata as has already been stated, and that this contention is barred by reason of the circumstance that the plea was not taken as it should have been taken in the mortgage suit. In support of this contention reliance has been placed on a decision of Asutosh Mookerjee, J., and Chotzner, J., reported in Srimanta Seal v. Bindubashini Dasi : AIR1924Cal138 . Looking to the facts of that case it seems to us that it is very difficult to say that the principle laid down there, does not apply here, for there is no substantial difference between the facts of the case before Mookerjee, J., and the facts of the present case. Mr. Mukherjee who appears for the respondent has sought to distinguish that case on the ground that there the defendant who was held to be barred was the purchaser of the equity of redemption whereas in the present case she (defendant 8) was a lessee either from the mortgagor or from a purchaser of the equity of redemption. That fact however dots not make any difference in principle. The question is whether the defendant 8 who was filling two capacities viz: (1) her capacity as a lessee in which capacity she was entitled to redeem the mortgage and (2) the capacity as heiress of her alleged fourth son, could contend in the latter capacity that the entire mortgaged properties could not be sold as the alleged fourth son did not join in the mortgage. Mr. Mukherjee argues with great force that she could not raise this contention because that was a question of paramount title and could not be investigated in a mortgage suit. But, as has been pointed out by Mookerjee, J., in the decision in Srimanta Seal v. Bindubashini Dasi : AIR1924Cal138 which has been referred to, it is clear that the rule that a question of paramount title cannot be investigated in a mortgage suit is subject to exception and reference is made to an early case namely the case of Bhaja v. Chunilal Marwari (1907) 5 CLJ 95. Mookerjee, J., proceeds to point out this:
One of the exceptional cases is furnished by the litigation before us. Here, the plaintiff was a defendant in the mortgage suit. He had a two fold character. As purchaser of the equity of redemption, he was properly before the Court; as settlement holder from the superior landlord, he could set up a defence that the mortgage could not be enforced against the property in his hands. He did not take that defence and the result was that a decree was made for sale of the mortgaged property in his presence. The decree is operative against him and he will be bound by the result of the sale in execution. In the present litigation, he seems to avoid the decree and to make it inoperative, though it was passed in his presence and is obligatory upon him. Clearly such a course is not permissible; if this suit were allowed to be maintained, the only possible result would be a multiplicity of litigation.
5. Here the facts stand on a somewhat Stronger footing. For it appears that the issue regarding the existence of the fourth son of Hriday was raised at the instance of one of the defendants in the suit namely, defendant 10, and although it was decided against him and against other contending defendants it appears that the present respondent did not appear in the suit, took no steps to prefer any appeal against that decree which really directed a sale of the entire mortgaged property including the l/4th share which is now in the subject-matter of controversy. Reliance has been placed by Mr. Mukherjee for the respondent on a decision of their Lordships of the Judicial Committee of the Privy Council in the case of Radha Kishun v. Khurshed Hossein AIR 1920 PC 81. An examination of that case will show that there the person against whom the plea of res judicata was sought to be raised was in the position of a prior mortgagee with paramount claim outside the controversy in suit unless his mortgage was impugned. Notwithstanding the fact that the mortgage was not attacked the High Court came to the conclusion that the plea of res judicata would be available to the plaintiff in the earlier suit who sued on the foot of an earlier mortgage. It was pointed out thus by Sir Lawrence Jenkins who delivered the judgment of the Judicial Committee:
To sustain the plea of res judicata it is incumbent on the Sahus in the circumstances of this case to show that they sought in the former suit to displace Bakhtaur Mull's prior title and postpone it to their own. For this it would have been necessary for the Sahus as plaintiffs in the former suit to allege a distinct case in their plaint in derogation of Bakhtaur Mull's priority. But from the records of this suit it does not appear that any thing of the kind was done.
6. Consequently, the plea of res judicata was not accepted by the Judicial Committee. Mr. Mukherjee argues consequently that in this case it ought to have been distinctly stated in the plaint that defendants 1, 2 and 3 were entitled to the properties and the case ought to have been specifically raised that no other person was entitled to the sale. We have been taken to two paragraphs of the plaint. We have no doubt that it was distinctly alleged in the plaint that the mortgagors were the only persons who are specific owners in respect of the mortgage property. In this view we think that the judgment of the Court below cannot be sustained, the appeal must be allowed and the application of defendant 8 under Order 21, Rule 100, Civil P.C., must be dismissed. The appellants are entitled to costs of this appeal, we assess the hearing fee at 2 gold mohurs. There will be no order as to costs in the Courts below. No orders are necessary on the application.
M.C. Ghose, J.
7. I agree.