ARUMUKHAM NADAR Vs. SAIDKANNU PACKER PILLAI

JUDGEMENT

(1.) The son and legal heir of defendant 1 in O.S. No. 1074 of 1103 on the file of the Padamanabhapuram Munsiffs Court is the appellant in this second appeal. It arises out of proceedings in execution of the decree passed in that suit and the facts so far as they are relevant for this appeal are as follows:- One Pethiru had created four successive charges on certain properties belonging to him. The third charge was by way of a chitty hypothecation bond in favour of defendant 1. When the subscriptions were defaulted defendant 1 brought a suit on his bond in O.S. No. 877 of 1101, obtained a decree and in execution purchased the properties himself. The fourth charge was by means of an Otti deed in favour of the plaintiff and she was omitted to be impleaded in O.S. 877 and O.S. 1074 was instituted to declare the decree and the execution proceedings in O.S. 877 of 1101 not valid and binding on the plaintiff and for a declaration that she was entitled to certain prior charges. The Court held that the plaintiff was entitled to priority to the extent of 1250 fanams. Her claim was for a larger amount. The court also gave the plaintiff the option to have the sale annulled on payment of 2072 fanams to defendant 1. Presumably this relief was granted to afford the subsequent mortgagee (the plaintiff) an opportunity to redeem the prior mortgagee (defendant 1) which O.S. 877 did not give as the subsequent mortgagee was not a party to that suit. This decree was passed on 20.11.1113. But the plaintiff did not seek to avail of the option until the execution application filed on 29.9.1119 (E.P. 494). Meanwhile new circumstances had altered the status and relationship of the parties. Defendant 1 as the purchaser in court auction of the equity of redemption of the properties in the sale held in his suit (O.S. 877) instituted O.S. No. 265 of 1114 to redeem the prior charge declared in plaintiffs favour by the decree in O.S. 1074. That suit was decreed on 29.4.1116 and pursuant to the execution of that decree defendant 1 took possession of the properties. It is subsequent to this that the plaintiff decree holder in O.S. No. 1074 seeks to avail of the option extended to her by that decree to redeem the charge in favour of defendant 1. That move was opposed on the ground that by reason of the redemption decree passed in O.S. No. 265 which had already been executed the plaintiff had lost her right of redemption. The courts below over ruled the objections and hence this Second Appeal.

(2.) In our opinion the second appeal must succeed. The plaintiff was defendant 1 in O.S. No. 256 and the effect of that decree was to supersede and annul ipso facto the decree passed in O.S. No. 1074. Whatever defences or objections the plaintiff had to defendant 1 being allowed redeem her must and ought to have been raised in that suit and she cannot now he heard to fall back upon the earlier decree. When defendant 1 brought O.S. No. 265 to redeem the plaintiff she could no doubt have claimed not only the prior charge declared in her favour in O.S. No. 1074 but also her Otti amount. It was even open to her to contend that defendant 1 had even waived his right to redeem her and allowed himself to be redeemed by her. She however preferred to remain ex parte and her son who contested the suit in his own right also did not raise these questions. The question as to who should redeem whom was directly and substantially in issue in both O.S. No. 1074 and O.S. No. 265 and when there are two inconsistent and contradictory decrees inter parties the later decree must prevail. The prior decree becomes unenforceable after the later decree. See Rama Prasad v. Mahabir (AIR 1924 All. 310). That decree can be collaterally superseded is recognised by so high a Judicial Tribunal as the Judicial Committee of the Privy Council. See Shama Purshad Roy Chowdery v. Hurro Purshad Roy Chowdery (10 Moores Indian Appeals 203). The High Courts in Indian have followed and sometimes even extended the rule of this decision. See Jogesh Chunder Dutt v. Kali Churn Dutt ( ILR 3 Cal. 30 ) and Achuthan v. Chakko John (18 Cochin LR 220). No doubt any extension of the rule has been disapproved by the Privy Council. See B. Naganna v. Venkatapayya ( AIR 1923 PC 67 ). We are not here extending the rule in 10 Moores Indian Appeals 203 but only applying the principle underlying it to the decision of the case before us.

(3.) The question may no doubt be raised whether the executing court can go behind the decree, but the point has not been raised before us. Had it been raised and were we satisfied about it we would not have hesitated to adopt the course set out in paragraph 3 of the judgment in 18 Cochin 320 (page 331). The Privy Council decision would seem to be not opposed to granting the relief on the execution side itself. But it is possible to interpret that decision differently. As indicated above we do not ourselves propose to raise the question for the parties.