LAWS(PVC)-1911-2-92

RAJA KUMARA VENKATA PERUMAL RAJA BAHADUR, MINOR, BY GUARDIAN MR W A VARADACHARIAR Vs. THATHA RAMASAWMY CHETTY

Decided On February 13, 1911
RAJA KUMARA VENKATA PERUMAL RAJA BAHADUR, MINOR, BY GUARDIAN MR W A VARADACHARIAR Appellant
V/S
THATHA RAMASAWMY CHETTY Respondents

JUDGEMENT

(1.) The suit in this case was instituted for the recovery of a sum of Rs. 10,929-10-9 with interest which the plaintiff alleges to be due to him from the defendants from the 27th April 1900. The plaintiff s case is that the villages mentioned in Schedules A and B appended to the plaint were mortgaged by the plaintiff to the defendants father, Subbi Chetty, on the 21st of May 1890 under two documents for a sum of Rs. 100,000 and Rs. 51,500, respectively, that the first of these mortgage-deeds filed as Exhibit A in the suit was void and unenforceable being contrary to Section 257A of the Code of Civil Procedure and that the second deed, Exhibit B, was also void for the same reason with respect to Rs. 31,343-1-9 out of the total sum of Rs. 51,500; that the villages mortgaged under the two deeds passed into the possession of the mortgagee and continued to remain in his possession till July 1900, when they were taken possession of by the Court of Wards when the superintendence and management of the plaintiff s zemindari of Karvetnagar were assumed by it, and that the villages remained in the Court of Wards possession till 1905, when the Court of Wards released its superintendence and handed over possession of the villages to the mortgagee. The plaintiff claims to be entitled to recover the entire profits of the villages in Schedule A and included in the mortgage-deed, Exhibit A. He claims also to be entitled to an account from the defendants of the incomes of the villages included in Exhibit B on the footing that the amount due to the defendants under Exhibit B was only Rs. 20,156-143 and estimates the amount that would be due to the plaintiff on such account being taken at Rs. 2,935-9-6.

(2.) Subbi Chetty had obtained two decrees against the plaintiff in Civil Suits Nos 197 of 1882 and 117 of 1883 on the Original Side of this Court for large sums of money. These decrees were transferred for execution to the District Court of North Arcot. He took out-execution of the decrees in the District Court and while the execution proceedings were pending, the parties made an adjustment of all their disputes, and the result was the execution of four mortgage bonds by the plaintiff to Subbi Chetti, two of which are the bonds, Exhibits A, and B, now sued on. The total amount found to be due to Subbi Chetti was Rs. 179,000 in which was included about Rs. 20,000 and odd on other accounts and the remainder was the amount due on account of the two decrees. The execution proceedings had previously been adjourned on several occasions in both cases and the judgment-debtor had agreed, in consideration of the decree-holder consenting to the adjournments and giving him time for payment, to pay enhanced interest; the sanction of the District Court had been obtained by the parties for the agreements to pay enhanced interest but not the sanction of the High Court as required by Section 25 7 A of the Civil Procedure Code. The total amount thus added to the amount of the decree in Civil Suit No. 197 was about Rs. 40,000 and Rs. 4,000 was added to the amount due under Civil Suit No. 117. The four mortgage bonds were all executed on the same day and evidently represented a single transaction. Bach of them refers to the amounts secured under the other bonds and purports to be for the remaining amount out of the total found due by the plaintiff. Exhibits A and B are both usufructuary mortgage-deeds. The period fixed for redemption was 15 years and the mortgagee was entitled to possession during the term, the entire usufruct being appropriated towards the interest due on the bonds. The plaint alleges that this Court which passed the decrees in the two suits Nos. 197 of 1882 and 117 of 1883 not having sanctioned the arrangements made by the parties for the payment of a larger sum than was legally due" under them, the mortgage Exhibit A and so much of the mortgage Exhibit B as went in satisfaction of the decree in Civil Suit No. 197 are void in law, and he institutes this suit on the footing that the defendants obtained and kept possession of the properties included in Exhibit A without any title at all and of those included in Exhibit B as a mortgagee only for the sum of Rs. 20,000 and odd. The defendants denied that the mortgage- deeds secured the payment of any sum in excess of the amount legally due under the two decrees and contended inter alia that the bonds were, at any rate, valid for the amount really due under the decrees and that they had in any event acquired by 12 years adverse possession a title to hold the properties comprised in the mortgages for the amounts secured by them respectively. They further pleaded that the question relating to the validity of the mortgage-deeds was res judicata by reason of the decree in Original Suit No. 19 of 1893 on the tile of the District Court of North Arcot, which was instituted against the plaintiff by Subbi Chetti in which he sought to enforce some of the obligations which the plaintiff was bound to perform under Exhibits A and B and the two other mortgage-deeds of the same date. Sixteen issues were framed by the lower Court, of which the 4th issue referred to the question of res judicata and the 2nd issue raised the question whether the mortgages were invalid as contravening the provisions of Section 257A of the Civil Procedure Code. The Subordinate Judge held on the 2nd issue that the bonds were not invalid, as, in his opinion, Section 257A only applies to execution proceedings. He decided the question of res judicata also against the plaintiff; We invited the learned Vakils on both sides to confine their arguments in the first instance to the question of res judicata raised by the 4th issue as, in case we agreed with the lower Court on that issue, a consideration of the other issues in the case would be unnecessary. The facts required for the disposal of that issue may be very briefly stated. Original Suit No. 19 of 1893 was instituted by Subbi Chetti against the plaintiff for the recovery of Rs. 3,843-1-4, which he claimed as due to him on the footing of the four mortgage-deeds executed on the 21st of May 1890, including Exhibits A and B, and also to compel the plaintiff to provide Subbi Chetti with the necessary documents of title to enable Subbi Chetti to recover during the currency of the mortgage-deeds the rents due under various leases of trees, thangedu bark and other kinds of forest produce, which the plaintiff had executed in the years 1886, 1887, 1888 and 1889 to one Subbaraya Mudali, one Sesham Chetti and Mutyala Mudali, one Rami Chetti, one Munisami Chetti and one Chenga Reddi. The above amount was made up of Rs. 741-1-1, road-cess paid by Subbi Chetti which the zemindar ought to have paid, and the proportionate rents which Subbi Chetti claimed as due to him out of the amounts collected by the plaintiff from the above-mentioned lessees under the leases referred to above which included villages not comprised in the mortgages. The plaint in that suit was dated the 30th June 1893. It does not appear that the zemindar put in any written statement. The suit was terminated by a compromise, Exhibit IX (a) dated 4he 10th April 1895, and a decree Exhibit IX dated the 17th April 1895 was passed in pursuance of the compromise. The terms of the compromise are very important for the decision of this appeal. Paragraph No. 1 provided for the payment to Subbi Chetti of an amount of Rs. 4,549- 9-4 "towards the plaint amount, costs and interest." Paragraph No. 2 was to the effect that the plaintiff herein should pay to Sabbi Chetti within six months for the period intervening from the date of plaint to the date of the decree at the rate of Rs. 200 per annum on account of the ijara amount of Chintam Sesham Chetti and others in respect of thangedu bark of the mortgage villages and at the rate of Rs. 280 per annum for the ijara amount of Rami Chetti and others. Paragraph No. 3 relating to the period subsequent to the razinama is Specially important and is in these terms: "Within one month from this date the defendants should make arrangements so that the ijara amount should be paid directly to the plaintiff by the respective ijaradars at the above-mentioned rates from the date of the razinama to the termination of the lease in respect of the above-mentioned thangedu bark."

(3.) Mr. Govindaraghava for the appellant contends that the razinama decree does not make the question of the validity of the mortgage-deeds res judicata. He urges that a compromise decree is not a judicial decision, that, although the parties to it cannot go behind the particular relief or reliefs "granted or refused by it, it has no operation with respect to anything beyond those reliefs. He contends also that such a decree being passed on an arrangement between the parties to the compromise is on the same footing as a contract; that an agreement for the payment of a sum exceeding the amount legally due under a decree being void under Section 257 A of the Civil Procedure Code unless sanctioned by the Court which passed the decree, a decree passed on such agreement is also void; and that the question whether such an agreement is void being one of law, the compromise decree, taking it to involve a decision as to the validity of the mortgages, is not binding upon the plaintiff in this suit.