K.C. Das Gupta, J.
1. The appellant instituted the suit out of which this appeal has arisen for recovery of arrears of rent from the defendants and also for declaration of a charge on one-sixth share in the putni mahal in the terms of the contract creating a darpatni. This one-sixth share of the putni had since then come into the hands of defendant No. 5. A further prayer was made that if the decretal amount was not paid amicably within the time fixed, it might be realised by sale of the charged property and if even that was not sufficient to realise the amount by sale of other properties belonging to the defendants.
2. The suit was contested by defendant No. 5 alone. The main defence taken on his behalf was that the one-sixth share of the putni, which he had purchased from the original darpatnidar, was not liable to be charged for the arrears of rent. It was contended on his behalf that Section 168A of the Bengal Tenancy Act being a bar to the execution of a decree for arrears of rent due in respect of a tenure or holding by attachment and sale of any movable or immovable property other than the defaulting tenure, the contract made at the time of the creation of the darputni was not enforceable. This contention was accepted as correct by the learned Subordinate Judge who was further of opinion that as the decision was between the present plaintiff and the first four respondents in which the objection as to the enforceability of the charge as created by the contract was overruled, it did not operate as res judicata. In this view, he passed a decree for arrears of rent against defendants Nos. 1 to 4 with costs and dismissed the suit as against defendant No. 5.
3. On appeal, the learned District Judge was also of opinion that the decision in the case of Naresh Chandra Ray v. Dhirendra Nath Dey, : AIR1950Cal323 , did not operate as res judicata and holding that the appellant could not make any other property liable for the arrears claimed excepting the darputni tenure in suit, he agreed with the learned Subordinate Judge that the plaintiff-appellant could not get any declaration of a charge as prayed for. The present appeal is directed against this decision of the learned District Judge. The appeal was filed on 25-11-1952. During the pendency of the appeal both the putni and the darputni have, under the terms of the West Bengal Estates Acquisition Act, 1953, vested in the State of West Bengal and all that the erstwhile owner of the putni is entitled to is compensation as will be awarded to him under the provisions of this Act. The State of West Bengal and the Collector of Howrah were added as parties to the appeal by an order of this Court passed on 1-6-1956 and the learned Government Pleader has appeared before us on behalf of the Collector of Howrah.
4. Before we proceed to consider the appeal on its merits, it is necessary to decide a point that was raised by the learned Advocate, who appeared for respondent No. 5, Satyaban Ray. He contended that the court-fees paid on the memorandum of appeal are not sufficient and so the appeal cannot be heard until and unless the deficit court-fee is put in by the appellant. A court-fee of Rs. 15/- was paid on the memorandum of appeal. Mr. Mukherji, who appeared for the appellant, submitted that this was the proper court-fee as the provisions of Article 17, Clause (vi) of Schedule II of the Court-fees Act were applicable. Both the learned Government Pleader and the learned Advocate for the respondent No. 5 contended that the provisions of Clause (vi) of Article 17 of Schedule II did not apply and that the appellant sought by this appeal to obtain a relief, the value of which could be ascertained. They argued that if the property on which a charge was sought to be declared was of a value more than the amount of the decree, this lesser value of the decree would be the value of the relief that the plaintiff would obtain by declaration of the charge, and if, on the contrary, the property sought to be charged was of a value less than the amount decreed, the lesser value of the property would be the value of the relief sought to be obtained by the plaintiff. Reliance was placed in this connection on a decision, In re, Vinaitheerthal Achi, AIR 1942 Mad 152 (B). It was there held that where the lower court had given a decree for the amount claimed but declined to give a first charge as prayed for and the plaintiff preferred an appeal against the prayer in respect of the first charge, the relief is capable of valuation.
5. With great respect, I am of opinion that this view is erroneous. If it had been true that but for this declaration of charge, the plaintiff would not have been able to realise anything at all in respect of the decree that had been given, it would be right to say, that the value of the property sought to be charged, to the extent of the decree, would be value of the relief obtained by the declaration of the charge. Where, however, as in most cases, the plaintiff would, even in spite of the refusal of the decree for declaration of a charge, be able to get something in respect of the decree either amicably or by execution, the value of the relief he would get by the declaration of the charge would be the difference between the amount of the decree and what he would have obtained even without the assistance of a charge being declared. It is, however, impossible to ascertain what the plaintiff would be able to realise amicably or by execution without the assistance of a charge being declared. The necessary consequence must be that the belief he is seeking to obtain by a declaration of charge is incapable of valuation. I have, therefore, come to the conclusion that the relief being incapable of valuation, the court-fee has rightly been paid in accordance with the provisions of Article 17, Clause (vi) of Scheduler II of the Court Fees Act. Our attention was drawn to a decision of this Court in Girijanand Datta Jha v. Sailajanand Datta Jha, ILR 23 Cal 645 (C), where in an appeal for a declaration, this Court held that the provisions of Article 17, Clause (iii) of Scheduler II of the Court-Fees Act applied. It is not possible to say however in the present case that even in the appeal, only a declaratory decree without any consequential relief is prayed for. On examination of the plaint and the memorandum of appeal, it appears to me that even in the appeal some consequential relief was also asked for. Clause (vi) of Article 17 of Scheduler II is therefore applicable here, as the relief is not capable of valuation.
6. Coming now to the merits of the appeal, it is necessary to take notice of Section 4 of the West Bengal Estates Acquisition Act. 1953. This Act was not on the statute book on the date the plaintiff brought his suit in April 1948. As, however, the litigation is still pending, it is necessary and proper, for this Court to take note of the change in law which has taken place. Under Section 4 of the West Bengal Estates Acquisition Act, 1953, the rights of putnidars and darputnidars have vested in the State. It is contended on behalf of the appellant that the necessary consequence is that the proviso to Clause (a) of Sub-section (1) of Section 168A of the Bengal Tenancy Act has come into operation so that the main provisions in Clause (a) under which a decree for arrears of rent cannot be executed by attachment and sale of any movable or immovable property other than the tenure or holding in default shall not apply. Against this, it is urged by Mr. Das Gupta, on behalf of the respondent No. 5 that the term of the tenancy cannot be said to have expired. It is sufficient to mention that this point has al-ready been raised and decided in Tarapada Sarkar v. Amitava Pal Choudhury, A. F. A. D. No. 8 of 1957 (Cal) (D), and it has been held that where the vesting in the State has taken place before an application has been made for execution of a decree, the proviso comes into operation and consequently the main provisions of Clause (a) of Sub-section (1) of Section 168A of the Bengal Tenancy Act have no application. I was a party to that decision and I have heard nothing to justify any doubt on the correctness of that decision. In my opinion, where the vesting has taken place before the application was made for execution of a decree, the tenancy has ceased to exist and the term of the tenancy must be said to have expired in a manner other than by surrender of the tenure or holding and consequently the provisions of Clause (a) of the first sub-section of Section 168A will not apply. The contention, that because of the provisions of Section 168A of the Bengal Tenancy Act the contract creating the charge was not enforceable, must, therefore, fail.
7. Apart from the provisions of Section 4 of the West Bengal Estates Acquisition Act, 1953, the position is that in a previous suit between the present appellant and the first four respondents, it was held by this Court that Section 168A could not stand as a bar in the way of the plaintiff in en-forcing the contract upon the very jarninnama which has been relied on by the plaintiff in this case. The courts below seem to have been of the opinion that, inasmuch as the view taken by the learned Judges of this Court in this previous decision which was reported in : AIR1950Cal323 , that Section 168A does not apply where no attachment is necessary, can no longer be considered to be good law in view of the later decision of the Full Bench in Amulya Chandra v. Pashupati Nath, : AIR1951Cal48 , the previous decision as reported in : AIR1950Cal323 , cannot operate as res judicata. It is well settled, at least after the decision of the Full Bench of this Court in Tarini Charan v. Kedar Nath : AIR1928Cal777 , that a decision will operate as res judicata even though the reasoning in law or on facts on which the decision is based may be erroneous. In the light of the Full Bench decision in Amulya Charan Roy's case (E), we are bound to hold now that the construction of Section 168A, on which the learned Judges, who decided the previous case, based their decision, was erroneous. That cannot, however, affect the operation of Section 11 of the Civil Procedure Code. Nor is it reasonable to say that there was no decision on the question of enforceability of the contract on that very jaminnama on which reliance is now placed and that the decision was only as regards declaration of a charge as regards the amount that was decreed on account of arrears of rent, Reading the judgment of this Court, in Naresh Chandra Roy's case (A), as a whole, I am clearly of opinion that for the purpose of deciding the appeal, the learned Judges thought it necessary to decide the question whether the defence that had been raised, that the provisions of Section 168A stood in the way of the plaintiff enforcing the contract entered into between the parties on the Jaminnama, was sound and their Lordships decided that it was not sound. In my judgment, there is no ground for saying that this decision was not intended to operate for all times. The effect of the general law of res judicata as well as the law laid down in Section 11 of the Civil Procedure Code is, that as between parties and people claiming through them, the decision on matters directly and substantially in issue, is decided for all times. Reference may be made in this connection to the decision of the Privy Council in Bindeswari Charan Singh v. Bageshwari Charan Singh . In that case, in a suit brought for maintenance, the question of the validity of a grant of the year 1909 was raised and decided, the court being of opinion that it was a valid grant. When, in a later suit, brought on a grant made in the year 1920 in accordance with the decision of the court in the earlier suit, the question was raised again, the trial court accepted the contention that the decision in the 1917 suit that the grant was valid operated as res judicata, but the High Court in appeal was of opinion that that decision was based on a wrong construction of Section 12A of the Chotanagpur Encumbered Estates Act, 1876, and held that the previous decision did not operate as res judicata. The Privy Council set aside the decision of the High Court, being of opinion that the Subordinate Judge was right in his view that the findings in the previous suit did operate as res judicata and the decision in that suit as to the construction of Section 12A was res judicata as to the validity of the grant of 1920 which was made in fulfilment of the obligation of that decision.
8. On a consideration of these authorities, I am clearly of opinion that the decision of this Court in : AIR1950Cal323 , does operate as res judicata, in the present litigation on the question of enforceability of the contract in spite of Section 168A of the Bengal Tenancy Act.
9. On behalf of defendant No. 5, a point was raised that he was not a party to the suit. It is clear, however, that his claim in this litigation is through the persons who were appellants in this Court in the previous suit. There can be no doubt, therefore, that though he himself was not a party to that decision, he is equally bound as much as the persons who actually were parties in that suit.
10. The necessary consequence of the above findings is that Section 168A of the Bengal Tenancy Act does not stand in the way of enforceability of the contract creating the charge. The position, however, is that the property, on which the charge is sought to be created, namely, one-sixth share in the putni, has ceased to exist and its place has been taken by the compensation which is payable to the intermediary, the owner of the one-sixth share of the putni, by the State of West Bengal. It is well settled that where property subject to mortgage or charge undergoes transformation, the mortgage or charge attaches to the form it takes after the transformation. (Vide the decision reported in Debendra Nath Sen v. Mirza Abdul Samad Seraji, 10 Cal LJ 150 (H). It is true that no prayer for a charge being declared on the compensation money was made. It could not be made when the suit was brought as at that time the property was in existence. When, however, a matter like this comes to the notice of the Court and the correctness of the allegation of fact, that the property has ceased to exist and its place has been taken by the compensation that will be payable, is not disputed, I think it wholly improper and hypertechnical for this Court to refuse to give a decree declaring a charge on the compensation merely because there has been no formal prayer before this Court. It may be mentioned that, in the additional grounds that were taken in this appeal, this point was definitely raised.
11. I have, therefore, come to the conclusion that this appeal should be allowed and that a decree declaring a charge on the compensation that becomes payable to respondent No. 5 for the one-sixth share of the putni be made. The respondent No. 5 will pay costs of this hearing to the appellant.
12. Let a decree be drawn up in Form No. 5A of Appendix D of the Civil Procedure Code.
13. The date fixed for payment will be six months from the date of this judgment. The decree will further declare that upon non-payment within the specified date, the plaintiff will be at liberty to proceed against the compensation money on which the charge is being declared.
U.C. Law, J.
14. I agree.