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1909 DIGILAW 258 (ALL)

Bhura v. Ghure

1909-07-09

KARAMAT HUSAIN

body1909
JUDGMENT : KARAMAT HUSAIN, J. 1. The facts which gave rise to the suit out of which this appeal arises are as follows:— 2. One Deojit Lal, father of Radhe Kishen, Ram Lal and Ghure, made a mortgage with possession in favour of Salig Ram, on the 25th July, 1881. Subsequently, on the 3rd November, 1896, Radhe Kishen and Ram Lal, mortgaged their two-third share in the equity of redemption to the plaintiff Bhura. On the 23rd November, 1903, Bhura instituted a suit upon his mortgage. Radhe Kishen, Ram Lal, Salig Ram and Ghure, were impleaded as defendants. 3. The reliefs prayed for in the plaint in that suit were to the following effect:— (a) Defendants 1 and 2 may be ordered to pay the amount due on the mortgage, dated the 3rd November, 1896, within a time fixed by the court, and on their failure to do so, time be given to the plaintiff to deposit the mortgage money due to Salig Ram. (b) Should Salig Ram (in the plaint, not accept, is to be found but this seems to be a mistake) accept the entire mortgage debt, then the entire property covered by his mortgage should be sold, and should he accept a portion of the mortgage money, i.e. two-third, then the property covered by his deed, dated the 3rd November, 1896 be sold. 4. The proceeding of the court, dated the 17th December, 1903, shows that Salig Ram demanded the payment of the entire mortgage debt due to him and that the plaintiff expressed his willingness to pay the entire sum provided all the property covered by his mortgage dated the 25th July, 1881, was ordered to be sold. The court gave a decree to the plaintiff under section 88 of the Transfer of Property Act which ordered him to pay the entire sum due to Salig Ram on his mortgage, but which ordered the sale of the ?rd share of Radha Kishen and Ram Lal mortgaged under the deed dated the 3rd November, 1896. The decree-holder, on the 23rd July, 1904 applied for an order absolute in which he prayed that the ?rd share of Ghure also be sold. Objections were taken to this application and it was rejected. There was an appeal and the following is the extract of the order of the lower appellate court, dated the 25th April, 1905. The decree-holder, on the 23rd July, 1904 applied for an order absolute in which he prayed that the ?rd share of Ghure also be sold. Objections were taken to this application and it was rejected. There was an appeal and the following is the extract of the order of the lower appellate court, dated the 25th April, 1905. “When the decree absolute under section 89 of the Transfer of Property Act came to be prepared, the appellant claimed to be put into possession of the share of the 3rd brother, not covered by the mortgage. The lower court has refused to do so, hence this appeal. It is clear that the appellant has misconceived his remedy. The decree under section 89 cannot go beyond that prepared under section 88. As matters stand, the appellant may be entitled to some relief but not by way of appeal from an order regarding the form of a decree under section 89. The obvious matter of proceeding is to apply for review of judgment in the original case.” 5. It is admitted that there was no appeal from the above order and that no steps were taken for a review of the original judgment. 6. The plaintiff, on the 18th of November, 1907, brought the suit out of which this appeal has arisen against Ghure, on the allegation that after the payment of the mortgage money due to Salig Ram, Ghure, Radha Kishen and Ram Lal got their names entered instead of that of Salig Ram in the revenue papers. One of the reliefs sought in the plaint was the possession as a mortgagee over the share of Ghure. One of the pleas in defence was that the suit was barred by the doctrine of res judicata. The court of first instance decreed the claim in part. The lower appellate court coming to the conclusion that the suit was barred by section 13 of the Code of Civil Procedure, Act No. XIV of 1882, set aside the decree of the court of first instance and dismissed the suit with costs. The court of first instance decreed the claim in part. The lower appellate court coming to the conclusion that the suit was barred by section 13 of the Code of Civil Procedure, Act No. XIV of 1882, set aside the decree of the court of first instance and dismissed the suit with costs. The plaintiff, Bhure, has preferred a second appeal to this Court, and it is argued by his learned vakil that the suit is not barred by the doctrine of res judicata inasmuch as the cause of action for possession did not arise till after the payment by him of the prior mortgage of Salig Ram, and that a prayer for possession was not a prayer which ought to have been made in the suit for sale which was instituted by Bhura on the 23rd of November, 1903. I am of opinion that the doctrine of res judicata bars the present suit. When Bhura instituted his suit for the sale of the ?rd share of Radha Kishen and Ram Lal, he under the law of mortgage, as it was interpreted by this Court at that time was bound to redeem the prior mortgage in favour of Salig Ram. The prayer for the redemption of that one-third share which belonged to Ghure and which could not be sold in his decree against the other ?rd, necessarily involved a prayer for the possession of that ?rd. That being so, the plaintiff ought to have prayed for it and his failure to do so debars him from bringing a fresh suit for it. There can be no doubt that Salig Ram was a necessary party to the suit instituted by Bhure on the 23rd of November, 1903. As soon as he was made a party, there should have been a determination of all the rights between the plaintiff and Salig Ram arising out of the prior mortgage, dated the 25th of July, 1881, in favour of Salig Ram and one of the rights to which the plaintiff was entitled was the right to the possession of ?rd in possession of Salig Ram on payment of the entire money due to Salig Ram. I am unable to hold that the cause of action for demanding possession had not accrued at the time of the former suit. I am unable to hold that the cause of action for demanding possession had not accrued at the time of the former suit. The right for the redemption of that mortgage by the plaintiff in consequence of the law of mortgage as then interpreted had vested in him and to demand possession was part and parcel of that right. His omission to demand possession in that suit debars him from claiming it by a fresh suit. I have already said that the plaintiff ought to have prayed for possession in the former suit. Section 13, Civil Procedure Code, therefore applies. 7. The remarks of Sir Lawrence Jenkins in Vinayak Shivrao v. Dattatraya Gopal, [1902] I.L.R. 26 Bom., 661 at pp. 667-668 in my opinion support the conclusion at which I have arrived. The result is that the appeal fails and is dismissed with costs.