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PATNA HIGH COURT
S.K.Das and Kanhaiya Singh JJ.
Chintamani Saran Nath Sah Deo
Versus
Syed Zahiruddin
Appeal From Original Order No. 421 of 1950 ;
Decided On : SEPTEMBER 20, 1955
CHOTA NAGPUR TENANCY ACT - SECTION 46, 47 - MORTGAGE DECREE - SALE OF MORTGAGED PROPERTY - RES JUDICATA - ESTOPPEL - APPLICABILITY.
Fact of the Case:
The appellant, a mortgagee, obtained a mortgage decree against the respondents, mortgagors, in a mortgage suit. The decree was made final. In execution of the decree, the appellant sought to sell the mortgaged property. The respondents objected to the sale on the ground that the mortgaged property was their raiyati land and, therefore, not saleable under Section 47 of the Chota Nagpur Tenancy Act. The appellant resisted the objection on the ground that the respondents were concluded by the principle of res judicata, since the question of the liability of the mortgaged property to sale was decided against them in the original mortgage suit.
Finding of the Court:
The court held that the respondents were not estopped from raising the objection of the saleability of the mortgaged property, as there was no estoppel against a statute. The court further held that the executing court was competent to consider, afresh the question whether or not the disputed land constituted a raiyati holding, notwithstanding the fact that this question had been specifically raised and decided by the court which passed the decree.
Issues: 1. Whether the respondents were estopped from raising the objection of the saleability of the mortgaged property. 2. Whether the executing court was competent to consider, afresh the question whether or not the disputed land constituted a raiyati holding.
Ratio Decidendi: 1. The court held that the respondents were not estopped from raising the objection of the saleability of the mortgaged property, as there was no estoppel against a statute. The court relied on the decision of the Privy Council in Bindeshwari Charan V/s. Bageshwari Charan, AIR 1930 PC 46 (B), in which it was held that the decision of a court in a previous suit as to the applicability of a statute operates as res judicata in a subsequent suit, and that the executing court is not competent to reconsider the question afresh. 2. The court held that the executing court was not competent to consider, afresh the question whether or not the disputed land constituted a raiyati holding, notwithstanding the fact that this question had been specifically raised and decided by the court which passed the decree. The court relied on the decision of the Privy Council in Bindeshwari Charan V/s. Bageshwari Charan, AIR 1930 PC 46 (B), in which it was held that the decision of a court in a previous suit as to the applicability of a statute operates as res judicata in a subsequent suit, and that the executing court is not competent to reconsider the question afresh.
Final Decision: The appeal was allowed with costs throughout and the order of the learned Special Subordinate Judge was set aside.
Kanhaiya Singh, J.
1. This is an appeal by the decree-holder from a decision of the Special subordinate Judge, Ranchi, dated 31-8-1950, in a miscellaneous case under Section 47 of the Civil P. C. upholding the objection of the judgment-debtors respondents to the sale of plot No. 106 in satisfaction of a mortgage decree on the ground that it was exempt from sale under Sec. 47 of the Chota Nagpur Tenancy Act.
2. The facts may be shortly stated. Syed Zamiruddin and his wife Bibi Rajwan executed in favour of Maharaja Pratap Udai Nath Sah Deo a simple mortgage bond on 7-6-1933, hypothecating three plots bearing Municipal plots Nos. 81, 83 and and 106 with houses standing thereon. The mortgagors stipulated to satisfy the mortgage debt in annual instalments of Rs. 500.00 with a further condition that in the event of default in payment of two consecutive instalments, the entire sum would become payable at once. No payment was made.
The mortgagee, Maharaja Pratap Udai Nath Sah Deo, then brought a suit to enforce the mortgage in the Court of the Subordinate Judge, Ranchi, being Mortgage Suit No. 49 of 1945, impleading Syed Zamiruddin and the heirs of his wife Bibi Rajwan, who had died in the meantime. Syed Zamiruddin, one of the mortgagors, did not enter appearance. The suit was contested by the, heirs of his wife Bibi Rajwan on various grounds.
One of the grounds urged by them before the Court was that the mortgage bond was invalid, since by reason of Sec. 46 of the Chota Nagpur Tenancy Act the property, in mortgage was not transferable by mortgage, lease, sale, gift or any other contract or arrangement. The learned Subordinate Judge, accordingly, framed an issue, being issue No. 4 in the suit, in the following terms: "Is the mortgage bond null and void and against the provisions of the Chota Nagpur Tenancy Act? Is the bond enforceable in law?"
At the time of hearing the question of transfer-ability of the mortgaged property was restricted to plots Nos. 81 and 83 only. There was no dispute as to the saleability of the third plot, namely, plot No. 106. After considering the evidence and the authorities placed before him, the learned Subordinate Judge reached the following conclusion: "Relying on these decisions, I come to the conclusion that the houses in suit are liable to be sold, and that the mortgage bond cannot be said to be null and void. This issue is also therefore decided in favour of the plaintiff."
The suit was eventually decreed on 13-8-1946, ex parte against Syed Zamiruddin and on contest, against the rest. The decree was made final on 23-9-1948. In due course the mortgagee decree-holder, Maharaja Pratap Udai Nath Sah Deo, levied execution in Execution Case No. 14 of 1949 for satisfaction of the decree by sale of the mortgaged property. He died during the pendency of the execution proceeding, and his great grandson, Maharaja Chintamani Saran Nath Sah Deo, was substituted in his place.
He is the appellant before us. It appears that two miscellaneous cases were filed in the execution case -- one by Syed Zamiruddin, judgment-debtor No, 1, being Miscellaneous Case No. 81 of 1949, under Sec.13 of the Money-Lenders Act, and the other by two of the judgment-debtors, namely, Naziruddin and Reyaduddin, being Miscellaneous Case No. 80 of 1949. This application was filed under Sec. 47 of the Civil P. C. objecting to the sale of one of the mortgaged plots, namely, plot No. 106 on the ground that the land being their raiyati land, the executing Court had no. power by reason of Sec. 47 of the Chota Nagpur Tenancy Act to put up the same for sale.
The appellant resisted the application, substantially, on the ground that the applicants were concluded by the principle of res judicata, since the question of the liability of the mortgaged property to sale was decided against them in the original mortgage suit. There was a further plea that plot No. 106 did not constitute the raiyati, holding of the judgment-debtors. It will be observed
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