(BOGGAVARAPU) BULLAYYA Vs. (GARLAPATI) SUBBAYYA

JUDGEMENT

(1.) In these Civil Miscellaneous Second Appeals the defendants in O.S. Nos. 620 and 621 of 1921 on the file of the Subordinate Judge of Bapatla are the appellants. The decree-holders, who are the same in both the suits, are the respondents. They obtained preliminary decrees against the respondents as the defendants in the two suits on a mortgage given by them in respect of a specific undivided share in a certain land alleged to be the service inam belonging to the defendants. A decree for the sale of the properties was passed. As it was found that the proceeds of the sale were insufficient to meet the decree, a personal decree was passed and in execution of that personal decree the remaining portion of the property which had not been mortgaged was attached. This attached portion of the property and the portion already sold form undivided parts of the same survey number.

(2.) When this property was attached the appellants judgment-debtors intervened with a petition under Section 47, Civil P.C., alleging that the land was service inam and was consequently not liable to attachment and that therefore it should be released from attachment. The respondents contended that the land was not unenfranchised service inam and that the application of the appellants was barred by res judicata by a certain prior order passed in execution of the decree in O.S. Nos. 620 and 621 at an earlier stage. The District Munsif held that the land was unenfranchised service inam and was therefore unattachable, and that the previous order did not operate as res judicata. In the result the attachment was ordered to be raised by the first Court. In appeal this order was set aside by the learned Subordinate Judge. He held on the merits that the land was service inam agreeing with the District Munsif on this point: but he held that the previous order referred to operated as res judicata and therefore it was not open to the judgment-debtors to raise the plea that the land was unattachable. He further held that even if the plea of res judicata cannot be maintained still, though the land was service inam, it was liable to attachment during the lifetime of the mortgagors, relying on a decision in Venkanna V/s. Chinna Appalaswami . This decision has been recently considered and dissented from in Kammara Chinna Nagiah V/s. Yerraguntla Pullayya , and having regard to this decision the respondents did not seriously argue that the lower appellate Court's decision on this point is correct. The concurrent finding of the lower Courts that the land is service inam, also cannot be questioned in these second appeals. So the position is this: if the previous order relied on as a bar to the present proceedings does not operate as res judicata, then the property is not liable to attachment and the lower Court's order will have to be set aside. Therefore the question for consideration is whether the previous order passed in execution would operate as res judicata in the present proceedings.

(3.) The order is Ex. 1 (a) and it was passed in the following circumstances. After the portion of the property subject to the mortgage was ordered to be sold in execution of the mortgage decrees, the judgment-debtors, that is the appellants, filed an application under Order 21, Rule 90 to set aside the sale on the ground of irregularity and fraud and they alleged in the petition that the suit land formed part of service inam. The sale was not attacked seriously on the ground of irregularity and fraud, but the judgment-debtors seem to have stressed the point that the land in question formed part of the service inam. The Munsif held that though the land was probably service inam once, it was subsequently enfranchised or resumed and therefore he dismissed the petitions. It is this order that is now sought to be relied on as constituting res judicata in the present proceedings. After this order of the District Munsif the judgment-debtors filed a suit before the Deputy Collector under Section 13, Act 3 of 1895, with respect to this land for the recovery of the emoluments, the land being a village carpenter's inam. The Deputy Collector held that the land is service inam land thereby differing from the District Munsif who passed the order under Order 21, Rule 90. He also held that the melwaram constitutes the emoluments of the office and that the civil Courts should decide whether the kudivaram also constitutes the emoluments. As the suit was one for the recovery of possession of the land he dismissed it, and this decision was confirmed in appeal by the Collector. This decision of the revenue officer is also relied on by the appellants in support of their arguments. The present proceedings originated after this decision.