Rajbans Sahay vs Askaran Baid

James, J.—On 29th May 1917 Askaran Baid instituted a suit on the basis of a mortgage bond against Rajbans Sahay and his sons Sheonandan and Jagdam Sahay in the Court of the Subordinate Judge of Gaya. The suit was decreed by the Additional Subordinate Judge on 23rd May 1918. The decree was in the usual form of a mortgage decree declaring the sum due to the plaintiff, allowing him six months for payment, and declaring that in default of payment the plaintiff would be at liberty to bring the mortgaged property to sale after making the decree absolute. The defendants of the suit in due course preferred an appeal in the High Court. They did not make any payment within the period allowed by the mortgage decree, and on 23rd December 1918 the mortgagee petitioned in the Court of the Subordinate Judge (first Court), at Gaya that the decree might be made absolute. Objection was taken by the defendants that the preliminary decree was the decree of the Additional Subordinate Judge of Gaya and that the Court before whom the petition was presented had no power to entertain it. Rajbans Sahay had by this time been adjudged an insolvent and he and the other defendants objected that the receiver of his estate was a necessary party. They also contended that the proceedings for making the decree final should be stayed till the case is heard in the appeal.

On 7th June 1919 the Subordinate Judge of the first Court after hearing arguments disallowed the objections and directed that the final decree should be drawn up. This was done and the mortgaged property was in due course brought to sale. The judgment-debtor raised objections under Order 21, Rule 90, Civil P.C. to the validity of the sale, which were dismissed by the Subordinate Judge. They appealed from his order to the High Court, and their appeal was dismissed on 7th December 1921. One of the grounds on which they then appealed was that the final decree was pronounced by the Subordinate Judge of the first Court who had no jurisdiction, but the Division Bench (Jwala Prasad and Ross, JJ.) held that there had been no irregularity. The appeal from the preliminary decree was dismissed by the High Court on 20th January 1922.

After the mortgaged property had been sold there still remained a balance due from the defendants, and the plaintiff applied on 7th August 1922 for a decree under Order 34, Rule 6, Civil P.C. On 13th November 1922 the objections which had been taken when the preliminary decree was made absolute, were once more taken by Rajbans Sahay, that judgment in the case had been pronounced by the Additional Subordinate Judge; the Subordinate Judge of the second Court had prepared the preliminary decree and the Subordinate Judge of the first Court had no jurisdiction to entertain the application; the decree had been made absolute during the pendency of the appeal in the High Court, and the decree which had been made final ought to be the decree of the High Court and not the decree of the Subordinate Judge. Ha also objected that the Court had no jurisdiction to pass a decree under Order 34, Rule 6 since he was an insolvent.

The Subordinate Judge disallowed the first two objections, but he rejected the application under Order 31, Rule 6 because the defendant was an insolvent. Askaran Baid then applied to the Insolvency Court, aid on 3rd February 1923 ho obtained permission u/s 28, Insolvency Act (5 of 1920) to apply for a decree under Order 34, Rule 6 against the insolvent in the Court of the Subordinate Judge. Armed with this permission Askaran Baid once more applied to the Subordinate Judge for a decree under Order 34, Rule 6. The defendant Rajbans Sahay objected that the sanction granted by the District Judge was invalid and that the application was barred by the principle of res judicata because the former application for a decree under Order 34, Rule 6 had been rejected. These objections were heard and disallowed by the learned Subordinate Judge, who directed on 31st December 1923 that a decree under Order 34, Rule 6 should be drawn up against Rajbans Sahay.

The suit out of which the present appeal arises was instituted by Rajbans Sahay on 22nd December 1924 for a declaration that the decree of 31st December 1923 was null and void, fraudulent and without leg d effect. His suit was dismissed by the Subordinate Judge of Gaya, and ho appeals from that decision. The learn advocate for the appellant argues in the first place that the Subordinate Judge of the First Court had no jurisdiction in the suit. The Subordinate, Judge of the second Court had signed the preliminary decree and the second Court had seisin of the case. It has already boon observed that this objection was taken from time to time in the court of the proceedings of the mortgage suit, and that it was duly considered by the learned Subordinate Judge and by the High Court. It appears that on the day when the preliminary decree was signed, the Subordinate Judge of the second Court happened to be in charge of the business of the Additional Subordinate Judge whose appointment had than come to an end. His business had been transferred by the District Judge to the Subordinate Judge of First Court. It is to be observed in the first place that though there may be two, or sometimes three, Subordinate Judges stationed at Gaya, one Subordinate Judge is still competent to perform the work of the other. The question, which officer is to dispose of pending business is a mere administrative matter, which is determined by the District Judge. Where the ordinary civil business of a district is such that it is necessary to appoint more than one officer to do the work of the Subordinate Judge''s Court, the Courts are locally known as the Courts of the first or second or third Subordinate Judge. But this local description means no more than that the first Subordinate Judge sits in Court No. 1, and the second Subordinate Judge in Court No. 2. Bach Subordinate Judge has concurrent jurisdiction over the whole district to which he is appointed. Between the parties to the present suit the matter is res judicata. The point was raised from time to time in the mortgage suit. It was certainly finally determined between the parties by ''the judgment of the High Court (Jwala Prasad and Ross, JJ.) dated 7th December 1921, which is Ex. E, in this case.

The second point taken by the learned advocate for the appellant is that in a mortgage suit the Subordinate Judge had no power to pronounce the final decree while the appeal was pending in the High Court. When the plaintiff applied that the decree might be made final Rajbans Sahay filed an objection on 14th March 1919 (Ex. A) taking this ground. The objections were taken up by the Subordinate Judge on 7th Juno 1919 and they were disposed of by Order 77 in the suit (Ex. D-3). When the decree-holder applied for a decree under Order 34, Rule 6 an objection on this ground was again taken, before the Subordinate Judge, that the final decree was illegal and that there could be no decree under Order 34, Rule 6. The matter was disposed of by the Subordinate Judge by his judgment of 13th November 1922, though he then declined to pass a decree under Order 34, Rule 6 because Rajbans Sahay had been declared insolvent. After Askaran Baid had obtained permission from the insolvency Court to apply for a decree under Order 34, Rule 6, he renewed his application before the Subordinate Judge. The objections which had been taken before were taken again and the matter was disposed of by Babu Narendra Nath Chakravarty, Subordinate Judge, by his judgment of 31st December 1923. If Rajbans Sahay was dissatisfied with that judgment he had a right of appeal, and as between the parties the matter must be treated as res judicata. It may, however, be re-marked that Order 41, Rule 5 expressly provides that an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appellate Court may order; and the fact that an appeal has been preferred does not operate to stay proceedings under Order 34, Rule 3, Civil P.C.

The third ground, taken by the learned advocate for the appellant is that after the first application of Askaran Baid for a decree under Order 34, Rule 6 had boon rejected, a second application could not be entertained. This ground was taken before the Subordinate Judge when the second application was made. Babu Narendra Nath Chakravarty by his judgment of 31st December 1923 held that the application was not barred. In that judgment (EX. E) he says that his previous judgment of 13th November 192a (Ex. 5) was in favour of Askaran Baid on all points except one, which was that the application could not be entertain ''I without sanction of the District Judge. He hold that the bar had been removed and no question of res judicata arose.

Mr. Shiva Nandan Ray farther argues that the sanction of the insolvency Court u/s 28,Insolvency. Act C of 1920 was invalid, but this point, was also taken before Babu Narendra Nath Chakravarty when the second application was made under Order 34, Rule 6 and it was decided in favour of the decree-holder by the judgment of 31st December 1923. That decision was subject to appeal, but there is nothing to indicate that any appeal was preferred, and each of the points must be treated as res judicata between the parties.

The learned advocate for the appellant further argues that the receiver of the insolvency estate ought to have been joined as a party in the proceedings in the mortgage suit which took place subsequently to 6th December 1918 when the receiving order was made. There is no merit in the objection. It was taken at the time when the preliminary decree was made final; and it could have been taken when Rajbans Sahay opposed the application for a decree under Order 34, Rule 6; but it was not then taken. The objection cannot now be made the basis of a separate suit for declaring null and void the final decree or the decree under Order 34. Rule 6.

The learned advocate for the respondent, supporting the decree on grounds decided against him in the Court below, argues that the suit is barred by the provisions of Section 42, Specific Belief Act. It is manifest that although this is inform a suit for a mere declaration the intention of the plaintiff is to avail himself of the declaration in order to nullify the decree; and he ought to have added a prayer to his plaint that the decree should be set aside. The leading case on this point is the decision of the late Sir Lawrence Jenkins in Deokali Kuer v. Kedar Nath [1912] 39 Cal. 704. Before a suit of this kind could be properly entertained, the plaintiff ought to have prayed for consequential relief and paid ad valorem court-fee on the value of the relief sought for, that is to say on the value of the decree which was to be set aside. As the plaintiff did not do this, and failed to pray for the consequential relief in order to avoid liability to pay ad valorem court-fee, the suit was liable to be dismissed under the provisions of Section 42, Specific Relief Act. It is to be regretted that the decision of Sir Lawrence Jenkins was not brought to the notice of the learned Subordinate Judge. The plaintiff who is a mukhtar of Gaya has used the processes of law to harass his creditor in every possible way. If the decision in Deokali Kuer''s case had been brought to the learned Subordinate Judge''s notice, the plaintiff would have been offered the alternative of amending his plaint and paying ad valorem court-fee or of having his case dismissed u/s 42, Specific Relief Act. If that had been done, much avoidable harassment might have'' been saved to the defendant. The suit was properly dismissed by the learned Subordinate Judge. The decree of the lower Court is confirmed and the appeal is dismissed with costs.

Das, J.

I agree.