MAHOMED MAZHAR ALI Vs. MTBIJJA BEGAM

JUDGEMENT

(1.) This is a decree-holder's appeal arising out of certain execution proceedings. In 1889 Mt. Kundan, who owned certain properties and was entitled to a pension from Government, executed a usufructuary mortgage of all these properties including the pension in favour of certain mortgagees. She took possession of the properties under a lease from the mortgagees, and for the due payment of rent she executed another mortgage-deed by way of security in which that pension was again included. The previous mortgage-deed was paid off; but a suit was brought on the basis of the second one and a decree obtained against the representatives of the mortgagor. Mazhar Ali was a purchaser of part of the mortgaged properties, and so was the respondent Bijja Begum. It appears that Mazhar Ali had to pay more than his due share in order to save his property from being sold, and having done so instituted a suit for contribution against Bijja Begam and certain other judgment-debtors. In this suit he claimed that he was entitled to enforce his claim against the portion of the pensions purchased by Mt. Bijja Begam on which he had a charge. The suit was first decided by Oh. Abdul Hasan, who decided issues Nos. 1 and 6 relating to the question whether the pension in dispute was or was not saleable in favor of the plaintiff. He ordered that a decree under Order 34, Rule 4, should be prepared for recovery of the amount out of the properties in the hands of the various defendants. An appeal was preferred to the High Court, and that judgment was set aside and the suit was remanded to the Court of first instance. This time the suit was disposed of by Mr. Bam Chand Saksena, who decreed the claim against the properties purchased by the various defendants as detailed in the plaint. He added that the amount decreed will be a charge on the properties purchased by the defendants. He further directed that a decree should be prepared according to Rule 4 of Order 34, Civil Procedure Code, six months time being allowed for payment. The learned Subordinate Judge seems to have accepted the findings arrived at by his predecessor, although the whole suit had been remanded, and he only dealt at length with the question of the proportionate liability of the various defendants. The decree-holder appealed to the High Court, and Mt. Bijja Begam and another defendant filed certain cross-objections. By the judgment of the High Court the amounts were slightly varied, but the decree was not set aside nor was the order of the Court that a decree under Order 34, Rule 4 be prepared in any way upset.

(2.) The decree holder is now seeking to recover the amount decreed to him by sale of the pausiou in the hands of Mt. Bijja Begam. The learned Subordinate Judge ha3 held that this pan3ioa is not attachable, and therefore cannot be sold. He has, therefore, dismissed the decree-holder's application.

(3.) In our opinion the question whether a certain pension is of such a character as not to be liable to be sold is a mixed question of law and fact. If the point was expressly raised by the defendant concerned in the suit itself and decided against her, and a decree under Order 34, Rule 4, was passed for the sale of that pension, it no longer remains open to the judgment-debtor to say that the pension was of such a character as not to be saleable at all. It would not be proper for the execution Court to reopen the question which has already been decided in the original suit. Of course, if the question had not been decided at all the execution Court were called upon for the first time to consider whether it would proceed to soil the property, which, either on the face of it or admittedly, was not saleable, there might be some force in the contention that the Court would not be justified in selling it. But the case here is quite different and we think that the question, which depended on a consideration of a number of facts, should not now be allowed to be reopened. We may note that in the Full Bench case of Mubarak Hussain V/s. Ahmed , two out of the three learned fudges held that in cases where no attachment is necessary, and the sale takes place in pursuance of a mortgage decree directing a sale of the mortgaged property. Section 60 of the Code of Civil Procedure will not be applicable so as to prevent the Court from soiling the property.