KANHAIYA LAL Vs. BANKE BEHARI

JUDGEMENT

(1.) This is a second appeal by a defendant against a decree of the lower Appellate Court in favour of the plaintiff, Mt. Sundar Kuer. The circumstances are that one Mt. Tulsa Kuer who was not a party to this litigation brought Suit No. 129 of 1926 for her maintenance and obtained a decree on 26 October 1926 for arrears of maintenance and Rs. 8 P.M. as future maintenance which was made a charge on the shares of the branches of Bindeshri Prasad and Kali Prasad. On 11 July 1928, Bindeshri Prasad executed a simple mortgage for Rs. 550 in favour of Bachan Lal. Mt. Tulsa Kuer in execution of her maintenance decree applied for sale of two annas share of a house and there was an auction sale and the property was purchased by Mt. Sundar Kuer. On 21 December 1932 Bachan Lal and his representatives brought a suit, No. 741 of 1932, for sale on his mortgage of 11th July 1928. Mt. Sundar Kuer was made a party to that suit. She did not defend the suit and an ex parte decree was passed against her. She then made an objection in execution that her two annas share was not liable for sale. The Courts below treated that objection as a suit under Section 47 and treated her as a plaintiff. The trial Court dismissed her suit and the lower Appellate Court has decreed her suit for a declaration that her property was not liable for sale. Now the first matter which arises is in what way Mt. Sundar Kuer was impleaded in Suit No. 741 of 1932. The lower Appellate Court sets out in regard to that point that it stated: Mt. Sundar Kuer who had a share in the disputed house and was also a purchaser of the part of the mortgaged property was liable for its payment.

(2.) We are of opinion that this allegation in the plaint clearly was against her rights which she now claims to be exempt from this mortgage decree. Her claim for exemption is that because she purchased on what was the prior charge of the maintenance decree, therefore she is not liable for the subsequent mortgage charge. No doubt that would have been a perfectly good defence for her to put forward in the Suit No. 741 of 1932. She did not put that defence forward and when a decree was passed she did not make any appeal, nor has she asked for any review of judgment. Under these circumstances, the question is whether she can raise this matter again by a subsequent suit which is not a suit based on any allegation of fraud. Is she not barred by the rule of res judicata?

(3.) On her behalf it has been argued that there was an application made by Bachan Lal in the course of execution proceedings on the decree for maintenance. All that is on the record of the present suit is a copy of the vernacular order of 6th June 1934 and this refers to an English order of which no copy is produced. Now learned Counsel for Mt. Sundar Kuer claims that this was an application under Order 21, Rule 58 and that it terminated in an order under Rule 62 and that accordingly under the provisions of Rule 63 that order would be final between Bachan Lal and Mt. Tulsa Kuer, subject to Bachan Lal bringing a suit within one- year, and that as Bachan Lal brought no such suit, therefore he would be barred from raising the matter subsequently. Now in the first place, assuming all this argument to be correct, this was a matter which should have been pleaded in defence by Mt. Sundar Kuer, but Mt. Sundar Kuer did not plead this as a defence in Suit No. 741 of 1932. As she did not plead this in defence, in our opinion she is debarred from raising it now as the subject-matter of her present suit. Further, we do not think that the claim has been established that the order was one under Order 21, Rule 62. As the Court below sets out: By an order dated 6 June 1934 it was ordered that it should be clearly notified in the sale proclamation that the charge under which the property was being sold was prior to the mortgage in favour of Bachan Lal.