Judgement

Appeal (No. 4 of 1942), by special leave, from an order of the High Court (September 24, 1937), affirming an order of the Additional District Judge of Hoshangabad (April 6, 1934).

The question for decision in this appeal was whether the respondents, plaintiffs in a mortgage suit, were entitled to recover possession of the property in suit from the appellant, who had been one of the defendants to the suit but had been discharged therefrom by order of the trial judge on his interlocutory application claiming that he had a paramount title. The respondents subsequently obtained a final decree for foreclosure in the mortgage suit, and the main question was whether on their application to execute that decree an order for possession could be made in that application as against the appellant.

The facts appear from the judgment of the Judicial Committee.

The trial judge directed that a warrant for possession should issue to eject the appellant, and on appeal that order was affirmed by the High Court (Pollock and Digby JJ.).

1943. Nov. 17, 18, 22. J. M. Parikh and Khambatta for the appellant. The order of the trial court of September 24, 1928, discharging the appellant from the suit, and that of November 20, 1928, refusing to alter that decision, are final and binding on the parties hereto, and the respondents are estopped by either of them from denying that the appellant has a paramount title. If that submission is good no further question will arise. The discharge of unnecessary parties is governed by Or.1.,r. 10 (2.), of the Code of Civil Procedure. [Reference was also made to Mulla on the Code of Civil Procedure, 9th ed., note to Or. 1., r. 10, at p. 434.] The appellant would not be a necessary party if he has a paramount title. It is submitted that the order rejecting the respondents application to retain the appellant as a defendant was made under Or. xxii, r. 10 (i.), of the Code, and the respondents could have appealed from it, but did not Or. xliii., r. I (i.). The matter is concluded, therefore, by either order. On the question of res judicata, it was said in Ram Kirpal Shukul v. Mst. Rup Kuari (( 1883) L. R. 11 I. A. 37, 41.), that " the binding force of such a judgment " depends not upon s. 13 of Act X. of 1877, but upon general " principles of law .... If an appeal did lie and none was “preferred the judgment was equally final and binding upon " the parties and those claiming under them." [Reference was also made to Soorjomonee Dayee v. Suddanund Mohapatter (( 1873) L. R.,I.A. (Sup. vol.) 212, 214-18.) and Sheoparsan Singh v. Ramnandan Singh (( 1916) L. R. 43 I. A. 91, 98-9.).] An application for execution of a decree is an application in the suit in which the decree was obtained Mungul Pershad Dichit v. Grya Kant Lahiri Chowdhry (( 1881) L. R. 8 I. A. 123.). " The law as to " estoppel by a judgment is .... that the matter must have " been directly and substantially in issue in the former suit, " and have been heard and finally decided " Kali Krishna Tagore v. Secretary of State for India (( 1888) L. R. 15 I. A. 186, 193.). As regards the decree in the mortgage suit, looking at the pleadings, the oral statements, the issues and the decree, it should be interpreted as not including the mortgagee rights of Govindram in the 1919 mortgage ; they were excluded from the decree. On construction, the mortgage of 1919 was a mortgage of the proprietary rights only. Lastly, Govindrams share in the mortgage of t 1895 is not included in the foreclosure decree which, in any case, is not binding on the appellant.

Sir Thomas Strangman K.C. and Handoo for the respondents. The first question is what was included in the mortgage of 1919, and in that connexion reference may be made to ss. 8 and 58 of the Transfer of Property Act (IV. of 1882), the latter of which states that " a mortgage is the transfer of an interest " in specific immovable property . . . . " The rights of Govindram as a mortgagee were included in the mortgage of 19