PARATHNATH Vs. RAMESHWAR PRATAP SAHI

JUDGEMENT

(1.) This is an appeal from an order which purports to have been passed under Section 47, Civil P.C. It is not suggested that the order is not really one under Section 47, Civil P.C. and that therefore no appeal lies. The facts which led to the present appeal are as follows : The four houses in dispute in this case belonged to one Bishambhar who died a long time ago, leaving a son Narain, a widow Mt. Chunni and a daughter Mt. Shyam Sundar. The last named had a daughter whose sons the present appellants are. As a matter of fact, Narain was a posthumous son and died in infancy. Mt. Chunni and Mt. Shyam Sundar executed a deed of simple mortgage on 22 September, 1910 in lieu of Rupees 2635-10-0, hypothecating the four houses in dispute, in favour of Mt. Dulhin Radha Dulari Kunwar, who is now represented by Rameshwar Pratap Sahi, the respondent in this appeal. The mortgagee instituted a suit on foot of the mortgage against Mt. Chunni and Shyam Sundar. The suit was contested by the mortgagors and it was held that the mortgage-deed not having been properly attested, was not enforceable. A simple money decree was however passed against the two ladies. Not long after the decree Mt. Chunni executed a deed of surrender in respect of the entire property left by her husband, including the houses in question, in favour of the appellants, who were then minors and were believed to be the next reversionary heirs. Mt. Dulhin applied for execution of her decree and had the houses attached. The appellants objected to the attachment but their objection was overruled. There, upon they instituted a suit for a declaration on the allegation that the deed of surrender executed by Mt. Chunni put an end to her Hindu widow's estate and vested the last male owner's estate in the appellants who were the next reversioners and that the simple money decree passed against Mt. Chunni could not be executed by attachment and sale of the property which then belonged to them. The suit was contested by the decree-holder on a variety of grounds. It was held by the Subordinate Judge, in whose Court the suit had been instituted, that the deed of surrender was fictitious and fraudulent and conferred no right upon the appellants and that the property which had been attached at the instance of the decree-holder was liable to be sold in execution of her decree.

(2.) It so happened that on the day the Sub-ordinate Judge delivered his judgment, a day or two earlier, Mt. Chunni died. Subsequently appellants applied for review of the decree passed by the Subordinate Judge in their suit on the ground that Mt. Chunni had, at any rate, no more than a Hindu widow's estate and that on the termination of that estate by her death, the property which was the subject-matter of the dispute in the case devolved upon the appellants and that it was not liable to be sold in execution of the simple money decree which had been obtained against her. The application for review was granted and the Subordinate Judge, reversed his previous decree and passed another, decreeing the plaintiffs suit. An appeal to this Court was unsuccessful but on a special appeal to the Privy Council the decree passed upon review was reversed and the original decree passed by the Subordinate Judge was restored. The net result of the litigation so far was that the appellants suit for a declaration of their right stood dismissed. The decree, holder then renewed her application for execution of the simple money decree by attachment and sale of the houses in dispute. The appellants again- contested, this time on the allegations on which they had applied for review, namely that as the life estate of Mt. Chunni had elapsed the simple money decree which had been obtained against her was not capable of execution by attachment and sale of what was originally her husband's estate and then belonged to the appellants. The learned Subordinate Judge held that the decretal amount included a sum of Rs. 1500 which was warranted by legal necessity and that the decree against Mt. Chunni should be considered to have been obtained by the decree- holder against the representative of the estate of the last male owner. In that view the learned Subordinate Judge allowed the application for execution for recovery of Rs. 1500 only. The objectors have preferred the present appeal from that order. The decree, holder has filed cross-objections impugning the order of the lower Court so far as it allowed the application for execution for Rs. 1500 only and not for the entire decretal amount.

(3.) It is argued on behalf of the appellants that the simple money decree obtained by the respondent can be executed by attachment and sale of the personal effects of Mt. Chunni and that, as she left no interest in the houses in dispute after her death, the same could not be proceeded against by the decree-holder. It is also urged that the judgment of the Subordinate Judge which was restored by their Lordships of the Privy Council, contains an adjudication on this point and operates as res judicata between the parties. Lastly it is argued that the finding of the lower Court that a sum of Rs. 1500 bad been borrowed by Mt. Chunni for legal necessity is based on the judgment of the Subordinate Judge which, if it does not operate as res judicata, is not admissible in evidence on this part of the case. The contention seems to be that, if that judgment operates as res judicata, the decree-holder is out of Court and it ought to be held that her decree cannot be executed by attachment and sale of the houses in dispute at all and that, if it does not operate as res judicata, any finding on the question of legal necessity is equally not res judicata and should not be admitted in evidence. The respondent joins issue on every one of these questions which we propose to dispose of seriatim.