NABA KUMAR HAZRA Vs. RADHESHYAM MAHISH

JUDGEMENT

(1.) These appeals are the sequel of a case which came before the Board in November 1923, and is reported as Nagendrabala Dasi V/s. Dinanath Mahish, AIR 1924 PC 34. The facts are stated in the judgment then delivered, by Lord Dunedin, and it is not necessary to repeat them in detail. The result of that case was that the present appellant was held to be a trustee for the mortgagors of a mortgage decree, and also of certain properties which he had purchased at a sale in execution of the decree, in the name of his wife, the present appellant 2, and was ordered to transfer the decree and the properties to one set of mortgagors, the plaintiffs in the suit, upon their recouping to him the sum he had paid for the purchase of the decree plus the amount of some additional payments which he had made to save the properties from being taken for other executions. There were three other sets of mortgagors who were defendants to the suit; the accounts between them were evidently of a complicated nature, and they offered no objection to a decree in this form.

(2.) The two suits now before the Board were instituted in 1924: one by the mortgagor plaintiffs in the former suit, who are the present respondents; and the other by the unsuccessful appellants in the preceding litigation, who are again the appellants to His Majesty in Council. Their Lordships will deal first with the respondents' suit in which the main questions for adjudication arise. At the date when the former suit was instituted the appellants had purchased only the mortgage decree. The execution purchase of the properties by them was made a few months later during the pendency of the suit. In the trial Court the plaintiffs in that suit (the present respondents) had not, in the first instance, asked for the assignment of the mortgage decree, but only for declaratory relief. They subsequently amended their plaint, and prayed for its assignment to them. This prayer was granted by the trial Judge, but being dissatisfied with his decree they appealed to the High Court, and by their memorandum of appeal specifically asked also for the conveyance of the properties "with necessary accounts." The High Court varied the decree of the lower Court by including in it a direction that the properties should also be conveyed to the respondents, but made no order for accounts, the claim for which seems to have been abandoned, or, at all events, not to have been pressed. The decree of the High Court was affirmed as a result of the appeal to the Board.

(3.) The present suit of the respondents is based upon the allegation that after the execution purchase of the properties by the appellants the latter were for some time in receipt of the rents and profits for which they have not accounted, and the prayer of the plaint is for account and payment. There was also a claim for damages, but that was abandoned. The Subordinate Judge, by whom the suit was tried held that the matter was res judicata by reason of the decision in the previous suit. The High Court, on appeal was of opinion that as the profits claimed had not been received at the time the previous suit was instituted, there could be no question of res judicata. They held that the respondents were entitled to the profits which came to the hands of the appellants during their possession of the properties, and ordered an account.