RAGHUKUL TILAK Vs. PITAM SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal and it has arisen out of the following facts: The appellant Raghukul Tilak sold certain properties of his to the predecessors-in-title of the defendants respondants for a sum of Rs. 26,000 on 12 September 1919. The plaintiff received a sum of Rs. 8,000 in cash for the same and left the balance of the purchase money with the vendees for payment to certain creditors of his. Among these creditors was one Jamna Das with whom certain properties not sold to the vendees had been mortgaged to secure the loan. The purchasers did not pay Jamna Das and the result was that Jamna Das brought a suit for sale of the property mortgaged to him in 1921 and obtained a decree against the plaintiff for recovery of Rs. 8,927, mortgage money and costs, in all Rs. 9,935. Thereupon the plaintiff brought the suit out of which these proceedings have arisen, viz.. Suit No. 656 of 1921 for recovery from the defendants of the sum of Rs. 9,935, for which a decree had been obtained by Jamna Das. The learned Subordinate Judge before whom the suit came, decreed the claim into two portions. He split it up in this way. He granted a decree for sale by enforcement of the vendor's lien to recover Rs. 9,196-4-0 only. For the balance, viz. 738-12-0, he granted a personal decree against the defendants. The plaintiff recovered the sum of Rs. 738-12-0 personally from the defendants and then proceeded to sell the property sold to the defendants to realize the remaining sum. The property had already been subject to a prior mortgage, and as the defendants had not paid that mortgage also, the property, when sold, fetched a very small sum of money, namely Rs. 2,000. The property was purchased by the plaintiff, but the prior mortgagees have resold the property, with the result that the plaintiff has lost the sum of Rs. 2,000 which he had offered for the property.

(2.) After all these proceedings, the plaintiff came into Court with an application purporting to have bean made under Order 34, Rule 6, Civil P.C. His case was that the balance of the purchase money was still due to him and was still recoverable by him from the defendants and a personal decree should be passed against the defendants. The application was resisted by the defendants. For the plaintiff it was contended that his right to apply for such a personal decree was res judicata in his favour and for the defendants it was contended that Order 34, Rule 6, hid no application to the facts of the case and apart from the lien granted by law to the plaintiff, the plaintiff had no right to recover the money personally from the defendants.

(3.) The learned Subordinate Judge held that the matter was not res judicata, but he further held that the plaintiff was not entitled to make the application under Order 34, Rule 6, Civil P.C. The points that we have to determine in appeal are the very two points that were before the learned Subordinate Judge. The question of res judicata arises in this way: The plaintiff, when he brought his suit, appended the following prayer as relief (b) to his plaint: If the proceeds of the sale be insufficient to pay up the decretal amount due to the plaintiff at the time, he may be authorized to apply for a decree for the balance.