Rameshwar v. Bhogiram

1. The facts of this appeal are that on 12th May 1943 Bhogiram instituted a suit against Ramdayal and Ramchandra for the redemption of certain lands which had been mortgaged by Bhogiram's father with Jwala Prasad, the predecessor-in-interest of Ramdayal and Ramchandra. During the pendency of that suit Ramdayal died and thereafter Ramchandra was brought on record as his legal representative. Subsequently Ramchandra also died and the present appellants were brought on record as legal repre­sentatives of Ramchandra. Bhogiram's suit was ultimately decreed but through some mistake the decree for redemption was passed against the deceased persons Ramdayal and Ramchandra instead of the present appellants who had been brought on record as legal representatives of Ramchandra. In execution proceedings of that decree, the appellants took the objection that the decree having been passed against dead persons, was nullity and was not executable. This objection was upheld by the executing court as well as by this Court in appeal. The decree-holder was directed to apply for amendment of the decree so as to make it one against the present appellants. The decree-holder accordingly applied for amendment of the decree but his application was rejected. Thereupon Bhogiram and his brother Baijnath instituted a fresh suit for redemption of the mortgaged property against the present appellants who are the sons of Ramchandra. The learned Civil Judge Second Class Bhind who tried the suit decreed the plaintiffs' claim, and his decision was affirmed in appeal by the learned District Judge of Bhind. The defendants have now filed this second appeal.

2. Two points were urged by Mr. Karkare learned counsel for the appellants. First it was contended that the decision in the previous suit filed by Bhogiram against Ramchandra and Ramdayal operated as res-judicata and that, therefore, the present suit by Bhogiram and Baijnath was not main­tainable. Secondly it was said that the mortgage was of Zamindari property and it having now vested in the State, the plaintiffs' suit for redemption was not maintainable. Both these contentions must be rejected. The decree that was passed in the previous suit being against Ramdayal and Ramchandra, who were dead, was obviously a nullity. Bhogiram's application for amendment of the decree so as to make it one as against the present appellants was not granted and the decree continued to be a nullity. That being so, there can be no question of the decree or the decision of the previous suit operating as res-judicata in the present suit. It is well-settled that judgments and orders which are mere nullities have no effect either as an estoppel or otherwise and cannot, therefore, operate as res-judicata in subsequent proceedings. As to the contention about the plaintiffs' right of redemption being lost by reason of the vesting of the Zamindari properly in the State under the Zamindari Abolition Act, it is sufficient to refer to the Full Bench decision of this Court in Ramchandra vs. Murlidhar (1954 MBLJ 671) where it has been held that a suit for redemption of the Zamindari property which was mortgaged with possession and which thereafter vested in the State is not barred under the Madhya Bharat Zamindari Abolition Act. In fact in the present case the courts below have found that the mortgage in question was not of any Zamindari rights but of certain Khudkast lands. On the authority of the decision in Ramchandra's case, the plaintiffs' suit is thus clearly maintainable. No other point was urged before me. There is no substance in this appeal and it is accordingly dismissed with costs.