1. These two appeals have been preferred by certain judgment-debtors from two orders passed in an execution case by which their objections under Section 47, Civil P.C., were disallowed. The facts necessary to be stated for the purposes of these appeals are the following: Under a document dated 1871 an allowance or tankha was created by Maharaja Aptab Chand Bahadur of Burdwan in favour of his natural father Lala Bans Gopal Nandy, the said allowance being of an amount of Rs. 1,000 per month pay. able to the said Bans Gopal Nandy and his male descendants in perpetuity. Certain immovable properties were charged for the payment of the said allowance. In 1926 one-sixth of the said amount, namely Its. 166-10-8 per month, was the amount of allowance payable to Lala Gati Prokash Nandy. He mortgaged the right to the said allowance of Rs. 166-10-8 per month, by a document dated 1926. On the basis of this mortgage the mortgagee) instituted a suit in 1928 alleging that the mortgage had been effected to meet certain legal necessities and to discharge certain antecedent debts.
2. The suit was instituted against the mortgagor Lala Gati Prokas Nandy as defendant 1, and the Maharaja of Burdwan was joined as defendant 2 in the suit. The latter pleaded that the suit* was not maintainable inter alia on the ground that the sons of the mortgagor who were interested in the allowance and in the equity of redemption were not made parties the said allowance being heritable and descendible in perpetuity. A petition was presented on behalf of the plain-, tiff mortgagee in which it was stated that inasmuch as it appeared that the tankha was granted for the maintenance of Lala Bans Gopal and also of his descendants, defendant 1 that is to say the mortgagor,; was not the only malik of the said tankha, and that the sons of the said defendant 1 were also malika thereof. It was prayed that the sons might be joined as defendants in the suit in order to meet the objections which defendant 2 had taken in his written statements. It was further prayed that the petition should be recorded as forming a part of the plaint. Upon this petition an order was made adding the sons of defendant 1 as defendants 3 to 5 in the suit. From the judgment of the Subordinate Judge in that suit it appears that besides defendant 1 who filed a written statement pleading certain payments and stating that the suit was premature, defendant 3 filed a written statement objecting to the sale of the allowance. Defendant 4 did not appear. Defendant 5, who was said to be a minor, was represented in the suit by a. guardian appointed by the Court.
3. The guardian filed a report saying that he would not contest the suit. At the hearing of the suit however none of these defendants appeared. The Subordinate Judge made a decree to the terms of which reference will presently be made, in favour of the plaintiff mortgagee. As regards defendant 2, the Maharaja, the Subordinate Judge held that ho, the Maharaja, was not a necessary party, claiming, as he did, a title paramount and that the suit must be dismissed against him. The preliminary decree that was passed in the suit was one by which defendants 1 and 3 to 5 were ordered to pay the amount due on the mortgage by a certain date, and it was further ordered that if by that date the amount was not put in, there would be a final decree for sale as had been asked for in the suit on behalf of the plaintiff. The payment not having been made, a final decree was eventually made in respect of the mortgaged property, namely, the one-sixth share out of Rs. 1,000 per month, the total amount of the tankha.
4. Two objections were then filed: one. on behalf of defendants 3 and 4 and the other on behalf of defendant 5. Both those objections related to two matters. Firstly, it was urged that there was no jurisdiction in the Court to make a decree as against these defendants; and secondly, it was contended that the tankha which was sought to be sold was not alienable. The question of jurisdiction that was raised was put forward upon the ground that since defendant 1 was the mortgagor no decree could have been passed as against the other defendants, namely, the sons of the mortgagor. The saleability of . the tankha was questioned on the ground that it was a monetary allowance which under the law cannot be sold. In the objection which judgment-debtor 5 filed, an order was made on 2nd May 1931, by which the objections were overruled and from this order the said judgment-debtor preferred Appeal No. 238 of 1931 to this Court. The order, by which the objections of the judgment-debtors Nos. 3 and 4 were dismissed, forms the subject-matter of their appeal, No. 239 of 1931.
5. The learned advocate who has appeared in support of these appeals has argued that these judgment-debtors were really in the position of persons claiming title paramount, and inasmuch as the decree that was made did not expressly decide any question as regards this title on the part of those judgment-debtors, the entire amount of Rs. 166-10-8, which formed the share of the judgment debtor No.1 in the taukha, could not be made liable under the mortgage which the judgment debtor No. 1 had executed and that decree in respect of the entire amount could be passed, nor could there be a sale held thereunder by which the entire amount of the allowance as. aforesaid could be sold. He has also argued that the tankha itself is not saleable and that therefore the order for sale in respect of it was bad. He has relied upon certain decisions to which we shall presently refer. One of these is the case of Asmaculla Pramanik v. Gamir Pramanik : AIR1929Cal672 In this case it was hold that where a defendant in a mortgago suit is impleaded as one interested in the equity of redemption but he has also a different title to the property acquired independently of the mortgagor, but the plaint pleads no- thing in derogation of that title and the defendant concerned himself does not set. it up, ho is not precluded by the principle of res judicata, from setting it up subsequently, inasmuch as this is not a matter that ought to have been made a ground of defence in the mortgage suit. Another case to which our attention has been drawn is the case of Ganapathy Mudaliar v. Krishnamachariar A.I.R. 1917 P.C.l2l. That was a case in which, along with a mortgagor certain other persons, namely, his sons, who were minors, were joined as defendants in a suit brought upon a mortgage. The said sons were represented by their guardian but for some reason or other the guardian failed to appear or to file any written statement. A decree was made for recovery of the amount duo on the mortgage the terms of which had been referred to by their Lordships in their judgment as being in these words:
The plaintiff do recover Hi. 10,891 together with further interest at 6 per cent per annum from date of plaint to date of payment and costs, to be recovered from defendant 1 personally and by the sale of the mortgaged property.
6. From the judgment it would appear that the decree did not comply with the provisions of the Transfer of Property Act, 1882. No appeal was preferred, from this decree but subsequently the properties having been sold and the sale having boon confirmed and the sale certificate having been issued, one of the sons instituted a suit to redeem the mortgage and their Lordships held that the validity of the sale which had taken place under the previous decree could not be questioned in a fresh suit but could only, be questioned by an application before confirmation of the sale by the executing Court under Section 244, 'Civil P.C. Our attention has also boon drawn to a third-case, namely, the case of Kalidas Roy v. Girindra Mohan A.I.R. 1921 Cal.343. That was a case whore during the pendency of a mortgage suit the mortgagor died and her sons, on being substituted on the record as legal representatives of the deceased mortgagor set up a defence that the mortgaged property belonged not to the mortgagor but: to somebody else and that the mortgage had been executed under circumstances; which would not bind them. It was held that the plea could not be entertained in the mortgage suit but the question should be left open for decision in a separate suit properly framed for the purpose.
7. Upon the facts of the present case to which we have already referred we are clearly of opinion that none of the decisions to which our attention has been drawn, has any application. The ease of Kalidas Roy A.I.R. 1921 Cal.343 merely lays down the well settled principle that a person who is made a party in a suit upon a mortgage, if he sets up an independent title, that title need not be discussed or dealt with in the mortgage suit but that the question being a question of title paramount should under ordinary circumstances be left over for consideration in a suit properly framed for the purpose. The case of Asmatulla Pramanik : AIR1929Cal672 is but an illustration of the same principle. The defendants, who had been joined in that suit as defendants in addition to the mortgagor, set up an independent title but that title was not disputed nor was anything said in the plaint in derogation thereof and in a subsequent suit which was instituted by them to establish their title it was held that the decision in the mortgage suit in which no question was gone into in respect of independent title, could not operate as res judicata even by the operation of the principle of constructive res judicata under Expl. (4), Section 11, Civil P.C. The decision of the Judicial Committee in the case of Ganapathy Mudaliar A.I.R. 1917 P.C.l2l upon which the learned advocate for the appellant has very strongly relied, is also a decision on a very different question. There the son who instituted the suit subsequently was undoubtedly a party in the previous suit. He did not appear in that suit, no question of any title paramount was put forward by him, nor any question of any title paramount was decided by the decree that was made in that suit. The decree purported to be a decree for the realization of the money against the mortgagor, it being stated in the decree that it was to be recovered from defendant 1 personally and by the sale of the mortgaged property, The decree, as has already bean pointed out, was not in conformity with the provisions of the Transfer of Property Act relating to mortgage decrees. No period of redemption had been provided for in the decree and when subsequently the son instituted the suit for the purpose of redeeming the mortgage their Lordships held that that was a question which could be decided by a proper application under Section 47, Civil P.C.
8. In the case before us the whole object of the plaintiff in impleading the appellants in the mortgage suit was to have the questions determined which arose upon the pleadings in the plaint and the written statement filed by defendant 2, the Maharaja, be that a decree for sale in respect of the entire l/6th share of the tankha binding on the sons also, might be obtained. It has been already pointed out that the plaintiff had, in his plaint, made the case that the mortgage executed by defendant 1 was binding on his sons on the ground of legal necessity and antecedent debts. The prayer was that the said appellants should be joined as defendants and that the application should be treated as part of the plaint, some of these appellants put in their defence but none of them appeared and eventually a decree was passed as against not only defendant 2 but also defendants 3 to 5. A period of redemption was provided for in respect of all the defendants and a proper mortgage decree for sale was made as against all of them. It was not a case in which a simple decree for money is being sought to be executed against the property which the judgment, debtors claim as being inalienable. So long as the decree stands the appellants who were parties to it cannot challenge its validity in the execution proceedings, either on the question as to the security that was to be sold or on the question of the sale-ability of that security.
9. We are of opinion that the proper remedy for the appellants was to prefer an appeal from the decree itself if they wore dissatisfied with its terms. The decree being a decree for sale and in respect of specified properties no question a& regards the saleability of those properties can be taken in execution.
10. The result is that in our opinion the appeals fail and they should be dismissed with costs, two gold mohurs in each case.