ANANDA PRASAD THAKUR Vs. CHANDRA SHEKHAR PRASAD THAKUR

JUDGEMENT

(1.) Plaintiffs opposite parties Nos. 1 and 2 obtained a preliminary mortgage decree against defendant No. 3 petitioner as also against others on 26th July, 1955. The decree was sealed and signed on 9th August, 1955. The property mortgaged was a milkiat share in certain tauzis. The plaint had described the mortgaged property in those terms, and the preliminary decree which followed the plaint also gave the description of the property mortgaged in terms of the milkiat share. It appears that the proprietary interest of the mortgagors vested in the State of Bihar on 1st January, 1956. Thereafter, a petition for amendment of the plaint as also of the preliminary decree was filed seeking to substitute me bakasht lands which, by operation of law under Section 6 of the Bihar Land Reforms Act, were said to have been transmuted into kasht lands, in the plaint as well as in the decree. This petition was rejected by the Court on 16th November, 1956. The plaintiffs filed an application thereafter on 5th August, 1958, for preparation of the final decree and asked the Court to describe the substituted security aforesaid in the final decree. The judgment-debtors objected to it. The learned, Munsif has held that in view of the recent Full Bench decision of this Court in Sukhdeo Das v. Kashi Prasad Tewari, 1958 BLJR 559 : (AIR 1958 Pat 630), the plaintiffs are entitled to proceed against the bakasht lands which would have been deemed to have been settled with the mortgagors or their successors-in-interest under Section 6 of the Land Reforms Act and that the previous order rejecting the plaintiffs' prayer for amendment of the plaint as also the preliminary decree will not stand as a bar in allowing their prayer in this proceeding for preparation of the final decree. The learned Munsif, however, has not gone into the merits of the case in the sense as to which properties or which bakasht lands can be said to be the substituted security in this case, although the defendant-petitioner before me had raised this objection in paragraph 4 of his objection petition filed on 13th March, 1959, which runs thus :

(2.) Mr. K.K. Sinha, learned Advocate for the petitioner, in view of the Full Bench decision referred to above could not contend that a mortgagee or a mortgagee decree-holder of the milkiat interest has no right to proceed against the substituted security in the nature of the bakasht lands transmuted into kasht. But, his main contention in support of this application are two, firstly, that this is a matter which ought not to be gone into at this stage : the description of the property in the final decree has got to follow that in the preliminary decree, and, secondly, that the rejection of the plaintiffs' petition for amendment of the plaint and the preliminary decree will be a bar to allowing the plaintiffs' prayer in the present proceeding for preparation of the final decree on the principles of res judicata. I am unable to accept either of these contentions. It is necessary to refer to a few passages from the decision of the Full Bench aforesaid. It is no doubt true that the matter in that case, so far as the question at issue is concerned, arose out of an execution proceeding, but it would be helpful to bear in mind the principle decided in that case. At page 575, column 2 (of BLJR) : (at p. 640 Col. 1 of AIR), it is observed ;

(3.) The question which now remains to be considered is as to whether the rejection of the plaintiffs' petition for amendment of the plaint and the preliminary decree by substituting the substituted security in place of the original description of the property can stand as a bar in the way of the Court to give relief to the plaintiffs in these proceedings for preparation of the final decree. The important principle which has to be remembered for the application of the principle of res judicata is as to whether it can be said that by rejection of the plaintiffs' previous petition by the order dated 16th November, 1956, the Court either expressly or by necessary implication, negatived the plaintiffs' right to have the substituted security included in the final decree. The answer must be in the negative. In this particular case the character of the property changed after the passing of the preliminary decree, and, therefore, the Court was perfectly justified in refusing to amend the plaint or the preliminary decree, as this relief could be given to the plaintiffs in the present proceedings for the preparation of the final decree, or even after it, in the execution proceedings. But, rejection of the plaintiffs' prayer for amendment of the plaint and the preliminary decree can, by no stretch of imagination, in my judgment, be tantamount, cither expressly or by necessary implication, to negativing the plaintiffs' right to have the substituted security included in the final decree. The prayer for amendment or its rejection stands on a different footing, and here, on the application of the plaintiffs, the Court is to see as to whether it is competent to substitute the substituted security in place of the original mortgaged property in the final decree. I have said above that the Court is competent to do so, and I may repeat that that competency is not in the least affected by the previous order dated 16th November, 1956, rejecting the plaintiffs' prayer for amendment.