MOHAMMAD HUZABBAR ALI KHAN Vs. ABDUL FATEH KHAN

JUDGEMENT

(1.) This is an appeal against a decree passed by the learned Subordinate Judge of Shahjahanpur dismissing the applicant appellant's application under O. 34, E. 6. The facts of the case can be shortly stated as follows: On 18 November 1920 one Mt. Muniza Begam and her husband Sabihuddin Khan executed a security bond in favour of a firm named Sahimal Manohar Das. The subject-matter of this security bond was the sole property of Mt. Muniza Begam. In due course the firm Sahimal Manohar Das brought a suit, No. 95 of 1926, against Mt. Muniza Begam and obtained a mortgage-decree affecting the property. After the decree had been passed Mt. Muniza Begam died leaving two heirs, viz., Mt. Ahmadi Begam and Musharraf Ali Khan, who succeeded to the property in equal shares. Mt. Ahmadi Begam sold her share in the mortgaged property which she had inherited from her mother to the present applicant-appellant on 10 August i928. The latter paid up the whole of the decretal amount due to the firm Sahimal Manohar Das under the said mortgage-decree and later brought a Suit No. 87 of 1928 against Musharraf Ali Khan claiming half the amount which he had paid in discharge of the decree held by Sahimal Manohar Das against the mortgagor, the late Mt. Muniza Begam. The present applicant-appellant succeeded in obtaining a mortgage-decree in his suit against Musharraf Ali Khan, but shortly afterwards the latter died and the present respondents are the representatives of the said Musharraf Ali Khan. It transpires that the mortgaged property in respect of which the present applicant-appellant had obtained a decree was sold and the sale proceeds proved insufficient to satisfy the decretal amount, hence the present application under Order 34, Rule 6, Civil P.C. By this application the present applicant appellant claimed that other property of Mt. Muniza Begam in the possession of heirs or representatives of Musharraf Ali Khan should be made liable for the balance of the decretal amount due under the decree passed against him.

(2.) The opposite parties opposed the application and claimed that the matter had already been decided and that the present applicant could not succeed by reason of the doctrine of res judicata. They contended that the precise point for determination in this application had already been decided in Suit No. 87 of 1928 which was brought by the present applicant-appellant against Musharraf Ali Khan. We must shortly consider whether or not the present applicant-appellant's claim is barred by res judicata. Upon a perusal of the judgment of the learned Subordinate Judge in suit No. 87 of 1928 it is abundantly clear that the present applicant- appellant claimed against Musharraf Ali Khan not only a mortgage-decree, but also a decree against his person and other property. Issue 4 in the case reads as follows: Whether the person and other property of the defendant can be made liable.

(3.) The learned Judge's finding on Issue 4 is in these words: The person and property of defendant cannot be made liable inasmuch as he was not the executant of the mortgage - he succeeded to the rights of the mortgagor by inheritance.