MT MUSTAFAI BEGAM Vs. RAGHURAJ SINGH

JUDGEMENT

(1.) First Appeals Nos. 401, 425 and 459 of 1932 arise out of Suit No. 19 of 1931 filed by Raghuraj Singh against the defendant. The first two appeals are appeals by defendants while the third one is an appeal by the plaintiff. There were two simple mortgages of 17 August 1915 and 30 August 1916 executed by the plaintiff's father, Madho Singh, and others in favour of the defendant-appellant, Mt. Mustafai Begum, on the basis of which she brought a suit on 5 June 1919 for foreclosure. Her case was that there had been a previous agreement between the parties to consolidate the two mortgage deeds into one. Ultimately the parties agreed and on 12 June 1919 deed of mortgage by conditional sale was executed under which the amounts due under the previous documents were consolidated. This mortgage-deed was executed by a very large number of persons who practically represented all the adult members of the plaintiff's family, including near collaterals. The present plaintiff was a minor at the time and was represented by his brother who acted as his guardian and also for himself. On the application of the parties the mortgage suit was compromised in view of the execution of this third mortgage-deed. A suit was filed by the plaintiff's brother as well as other adults for the cancellation of the mortgage-deed and the compromise, in which the present plaintiff was included as a defendant. The matter came up to the High Court and the suit stood dismissed and the mortgage-deed and the compromise were upheld by the High Court.

(2.) The present plaintiff filed his suit first in forma pauperis in the Court of theMunsif of Shahganj on 23 December 1929. The Munsarim reported that the value of the subject matter in dispute was much higher and the Munsif had no jurisdiction. Thereupon the plaint was returned by the learned Munsif for presentation to the proper Court. A preliminary decree based on the compromise had been passed on 23 November 1920 and the final decree was passed on 25th August 1930. The present plaint was filed in the Court of the Subordinate Judge on 2 January, 1931. It has been assumed by the learned Subordinate Judge without any express finding that the final decree of 25 August 1930 was passed during the pendency of the previous suit in the Court of the Munsif, which may be assumed to be the fact. But the learned Subordinate Judge has not at all considered the effect of the final decree having preceded the institution of the suit in the Court of the Subordinate Judge. He has found that in view of the previous decision of the High Court upholding the compromise and the preliminary decree the latter are binding on the plaintiff and the principle of res judicata applies against him. He has accordingly held that it is not open to the plaintiff to challenge the preliminary decree which was passed in 1920 in the mortgage suit. He has, however, held that on the principle of lis pendens the final decree is ineffective because it was passed during the pendency of the suit in the Munsif's Court. He has accordingly not only set aside the final decree and not only reopened the proceedings for the preparation of the final decree, but has decreed the plaintiff's claim for redemption in toto.

(3.) It seems to us that the view taken by the learned Subordinate Judge cannot be supported. In the first place he has entirely overlooked the fact that the final decree was passed before the institution of the present suit and cannot be held to be ineffective on account of the institution of the subsequent suit. As a matter of fact the principle of Section 52, T.P. Act, applicable to transfers of property is not applicable to suits and decrees passed in such suits. The plaintiff should have taken steps to get the proceedings stayed and if he failed to do that and allowed a decree to be passed against him, then the mortgage suit became "a former suit" within the meaning of Section 11, Civil P.C., by virtue of Expln. 1 added thereto. Furthermore, putting the case for the plaintiff at its highest, all that could be said would be that the final decree would be subject to the result of the suit in the previous Court. But in point of fact the plaint was actually returned by the learned Munsif on account of want of jurisdiction and was therefore not fruetuous. The mere fact that the plaintiff instituted another suit subsequently would not make the final decree which had been obtained previously, null and void. Secondly, the learned Subordinate Judge's view is obviously erroneous inasmuch he has not only reopened the final decree, but has actually decreed the plaintiff's claim in full, ignoring the effect of the preliminary decree which he has himself held to be binding on the plaintiff under Section 11, Civil P.C.