(CHOZIMATATHINGAL) THAREEKUTTI HAJI Vs. MISANAU

JUDGEMENT

(1.) This appeal arises out of an order passed for proclaiming and selling properties in execution of the mortgage-decree in O. S. No. 45 of 1920 on the file of the Subordinate Judge's Court of South Malabar at Calicut. The 4 defendant in the suit is the appellant before us. The properties belonged to the first defendant. It appears that some of these properties had been mortgaged to the 4 defendant who had instituted O. S. No. 35 of 1913 to enforce that mortgage. After obtaining a preliminary decree his claims were satisfied by the execution by the mortgagor of a fresh mortgage for Rs. 60,000. Together with the advance of some money and for the balance that remained a final decree was passed on the 18 November 1918 in execution of which the items mortgaged to him were ultimately purchased by he decree- holder himself. The mortgage which formed the subject-matter of O. S. No. 45 of 1920 was executed on the 24 of April 1916, and comprised these properties as well as other properties. In the suit the 4 defendant claimed priority for the amount of Rs. 60,000 mortgage and the arrears of rent charged on the equity of redemption by the lease executed by him to the mortgagor. Though he made reference to the amount due to him under the final decree in O. S. No. 35 of 1913, his rights under that decree were not, as a matter of fact put into question in that suit, and the issues also did not raise that question. In the decree that was passed the learned Subordinate Judge reserved the priority that he claimed on the Rs. 60,000 mortgage and the arrears of rent and nothing was mentioned about his rights as the decreeholder in O. S. No. 35 of 1913. In execution of the decree in O. S. No. 45 of 1920 the defendant now objects to the sale of those properties which had been purchased by him in execution of his final mortgage-decree in O. S. No. 35 of 1913. His objection petition was presented under Order 21, Rule 66, Order 47, Rule 1, and Secs.151 to 153 of the Civil P. C. The Subordinate Judge overruled his objection on the ground that his claims as the decree- holder in O. S. No. 35 of 1913 were not reserved by the decree in O. S. No. 45 of 1920 and that, therefore, in his opinion it was not now open to him to press them before the executing Court. In effect he held that the 4 defendant's claims were barred by limitation.

(2.) The learned vakil for the appellant argues that in the circumstances of the case the plea of res judicata cannot operate against the claims of the 4 defendant. The learned vakil for the respondent argues by way of preliminary objection that it is not open to the 4 defendant to prefer an appeal in this case as the petition presented by him is under Order 21, Rule 66, Civil P. C., 1908, and does not come within the scope of Section 47, Civil P. C.

(3.) We heard the case both on the merits and on the preliminary objection. On the merits we have no doubt that the claims of the appellant as decree-holder in O. S. No. 35 of 1913 are not barred by res judicata. It seems to us that the learned Subordinate Judge has taken a wrong view of the pleas set up by the 4 defendant in O. S. No. 45 of 1920. It does not appear, as already mentioned, that he claimed priority for the amount due to him under the final decree in O. S. No. 35 of 1913. Though he was made a party to the suit his rights as prior mortgagee were not impugned by the plaintiff in O. S. No. 45 of 1920 and, therefore, there was no need for him to make his prior mortgage which was not attacked by the plaintiff a ground of defence in that suit. In these circumstances, the appellant, 4 defendant, is not now barred from asserting his claims by Section 11, Civil P. C. See Radhakrishun V/s. Khurshed Hossain [1920] 47 Cal. 662. That the Subordinate Judge's decision on this point is wrong has been fairly conceded by Mr. Ranganatha Iyer. His main argument is that there is no appeal in this case. Though the petition is presented under Order 21, Rule 66, Civil P. C., 1908, if the allegations contained in it really bring it within the scope of Section 47, then we must hold that an appeal lies. But we are satisfied in this case that the appellant's contentions do not fall within the scope of Section 47.