RAM DHAN Vs. MTCHUNNI KUNWARI

JUDGEMENT

(1.) This is a second appeal from a decision dated 16 August 1933 of the learned Additional Subordinate Judge of Bareilly, by which he allowed an appeal from a decision dated 7 May 1931, of the learned Additional Munsif of Bareilly.

(2.) The plaintiff is one Mt. Chunni Kunwar, and the defendants are two brothers named Ram Dhan and Tek Chand. On 16 August 1918, one Karam Ali executed a simple mortgage-deed of some zamindari property in favour of the defendants and their mother, Mt. Jai Dei, and on 22 August, 1922, a decree was obtained on the basis of that mortgage. Some years were then allowed to elapse, but on 21st December 1926, the property was sold in execution of the above decree, and it was purchased by the present defendants. In the meantime, on 18 July 1923, Karam Ali had executed another simple mortgage of the property in favour of the defendants, and on 22 December, 1926, they brought a suit on the basis of that mortgage. On 17 January 1927, Karam Ali executed a usufructuary mortgage of the property in favour of the present plaintiff, Mt. Chunni Kunwar, and on 7th February 1927, she was impleaded as a subsequent mortgagee, in the suit brought by the defendants on the basis of their mortgage of 18 July 1923. An ex parte decree, on 14 April 1927, was passed in that suit, and an application to set it aside was afterwards dismissed. Mt. Chunni Kunwar on 20 January 1927, out of the consideration for her mortgage paid off what was due under the first mortgage of 16 August 1918, and the sale that had taken place on 21st December 1926, in execution of the decree that had been obtained on the basis ofthat mortgage was set aside. The defendants afterwards put into execution the decree that they had obtained on the basis of the second mortgage, and on 15th January 1931, the plaintiff instituted the present suit for a declaration to the following effect: It may be declared that the plaintiff, as the representative in interest under the document dated 16 August 1918, is in possession of the mortgaged property as a prior mortgagee, and that the sale proceedings, dated 28 January 1931, are subject to the preferential rights of the plaintiff.

(3.) The learned Additional Munsif dismissed the suit with co3ts, but as a result of an appeal by the plaintiff, the learned Additional Subordinate Judge reversed the decision of the trial Court, and gave the plaintiff a declaration that she was subrogated to the rights of the prior mortgagees under the deed of 16 August 1918, and that the sale in execution of the defendants decree should be held "under the superior rights" of the plaintiff. This second appeal is by the defendants. The points urged on behalf of the appellants are as follows: (1) The decree of 14 April 1927 passed on the basis of the mortgage of 18 July 1923, describes the plaintiff as a subsequent mortgagee, and having regard to the provisions of Expln. 4, Section 11, Civil P.C., she is debarred now by the principles of "res judicata" from claiming to be subrogated to the position of the mortgagees of the mortgage of 16 August, 1918; (2) The present suit is barred by time, since a person seeking priority by the satisfaction of a mortgage cannot claim to be subrogated if at the time of the assertion of that claim a suit on the basis of that mortgage would be time-barred; and (3) Having regard to the provisions of Section 47, Civil P.C., it was not open to the plaintiff to seek relief by means of a separate suit. As to the first point, we were referred by learned Counsel for the appellants to a number of reported decisions, of which we think it sufficient to refer to the following: Sri Gopal V/s. Pirthi Singh (1902) 24 All 429, Gajadhar Tell V/s. Bhagwanta (1912) 34 All 599, Brijmohan Singh V/s. Dukhan Singh 1931 9 Pat 816, Kanhaiya Lal V/s. Mt. Ikram Fatima 1932 8 Luck 103 and Gopal Lal V/s. Benarasi Pershad Chowdhry (1904) 31 Cal 428. In the first of the above cases, which was a case decided by their Lordships of the Privy Council, it was held that where, to a suit by a mortgagee on a mortgage bond of certain property, a prior mortgagee of the same property is made a party and omits to set up his prior charge and claim to have it redeemed, a suit subsequently brought by him for that purpose was barred by Expln. 2, Section 13, Civil P.C., as it then stood.