CHINTAMANI SARAN NATH SAH DEO Vs. SYED ZAHIRUDDIN

JUDGEMENT

(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 Section 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/- 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 Section 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:

(3.) Two questions have been canvassed before us: first whether plot No. 106 formed the raiyati land to the judgment-debtors, and second, whether the judgment in the mortgage suit operates as res judicata and precludes the executing Court from going behind the decree.