KAZIM ALI KHAN Vs. OM PRAKASH

JUDGEMENT

(1.) This is an appeal by Kazim Ali Khan and Nisar Ahmad, defendants 1 and 3, against the decree passed by the learned Civil Judge of Muzaffarnagar on a suit brought by the plaintiffs, Om Prakash and Kailash. Their claim for the recovery of possession over the plaint property and certain mesne profits was allowed. The principal plea taken in defence in the Court below as well as before us was that the plaintiffs suit was barred by the principle of res judicata. In order to appropriate this plea as well as the other pleas taken by the defendants, it is necessary to state in some detail the anterior history which has given rise to the present suit.

(2.) It appears that one Raghunandan Prasad was the owner of some zamindari property which after his death came into the possession of his sons, Chandra Shekhar and Ghanshyam Das. These two executed three mortgages in the years 1905 and 1906 in favour of the defendants, and the mortgaged property was comprised in several khewats, viz. Nos. 20, 26 and 29. The mortgagees brought Suit No. 464 of 1917 against Chandra Shekhar and Ghanshyam Das and obtained a preliminary decree in which the old numbers mentioned above were given. Before a final decree could be prepared, there was a new settlement and the mortgagee decree-holders, when applying for the preparation of the final decree, gave what they considered to be the corresponding new numbers of Nos. 20, 26 and 29. It was mentioned in the application that No. 20 was renumbered as No. 17, but Nos. 26 and 29 were renumbered as No. 19. Notice of this application went to Chandra Shekhar and Ghanshyam Das, the judgment-debtors, but no objection seems to have been taken by them with the result that a final decree was prepared on 22 December, 1923 and the recent numbers were given in the decree according to the application of the decree, holders.

(3.) The mortgagee decree-holders then proceeded to execute their decree and when notice went to the judgment-debtors they objected and said that there had been a mistake in the preparation of the final decree and Nos. 26 and 29 did not correspond to No. 19. Nos. 26 and 29 according to the judgment-debtors had an area of about 37 bighas whereas No. 19 had an area of about 151 bighas. The Court executing the decree dismissed the objection of the judgment-debtors on 10 September 1928 with the observation that the details of the property to be sold were in accordance with the decree passed under Order 34, Rule 5, Civil P.C., and such an objection was not made when that decree was passed. We might mention that the final decree was taken in appeal to the High Court and the final decree was confirmed by this Court as well. Having been unsuccessful in the execution department, Chandra Shekhar and Ghanshyam Das made an application to this Court for the amendment of the decree. That application was dismissed by this Court on 7 March 1929, and it was pointed out that Chandra Shekhar had appealed from the final decree and had not taken any objection against the new numbers entered in the decree and the decree as passed by the trial Court was affirmed on appeal by the High Court. The Bench was of the opinion that the correction of the final decree could not be allowed merely because certain old numbers were mentioned in the preliminary decree. The property entered in the final decree, namely khewat No. 19, was sold and purchased by the mortgagee decree-holders.