1. The facts of this case are these. The plaintiff, who is the respondent in this Court, with his brother Shib Sahai, obtained a usufructuary mortgage from the ancestors of the appellants on the 29th August 1905. On the same date, the mortgagers executed a rent note, by which they agreed to pay to the mortgagors Rs. 7-12-0 per month as rent of the house mortgaged. Sometime later, the mortgagees obtained a pimple money decree against the Mortgagors. In execution of that decree they attached the interest of the judgment-debtors in the house, viz., the right to redeem. The judgment debtors objected and said that it was wrong to describe them as mortgagors and that they were the full owners of the house. They added that they apprehended that if they were described as mere mortgagors the property might fetch a small value. Notice was riven to the decree-holders but they were not present when the application was disposed of. The execution Court held by decision dated 29th April 1920, that the words “mortgagor's interest” should be expunged. The house, however, was never brought to sale. I am told by the parties that some other property of the appellants was sold and that sale satisfied the simple money decree.
2. After, all this had happened the suit out of which this appeal has arisen was instituted by the respondent for recovery of the rent on foot of the registered rent note.
3. The suit was decreed by the lower Appellate Court and two points have been urged in appeal.
4. The fourth point in the grounds of appeal is, that the lower Court was not justified in coming to the conclusion that the mortgage-deed of 1905 and the rent note were not mere colourable transactions but were substantial ones. Mr. Aziz, however, conceded that the plea could not be urged as it went counter to the finding of the lower Appellate Court.
5. Mr. Aziz, however, urged that the finding of the execution Court, dated 29th April, 1920, operates as res judicata in the present suit and he cites the case of Dambar Singh v. Kalyan Singh (1).
6. Mr. Aziz has conceded that there is nothing on the record to show that the respondent mentioned the mortgage of 1905 as the mortgage by virtue of which his judgment-debtors were in the position of the mortgagors and the property was being sought to he sold subject to the mortgage of 1905. To start with, therefore, there is no decision that the mortgage of 1905 and the rent note of that date were fictitious transactions.
7. Assuming that all the necessary facts were found in favour of the appellants, it is clear to me that the plea of res judicata cannot be sustained. The proceedings in which the objection was raised were under Order 21, rule 66 of the CPC. They were ministerial proceedings. More correctly speaking, they were non-judicial or quasi-judicial proceedings. The Court had to determine what were the properties to be sold and what were the encumbrances on the same Any decision come to in those proceedings cannot operate as res judicata on the very point raised in a regular suit later on. In the case quoted the question that subsequently arose, arose in the very execution proceedings in which the former finding had been arrived at.
8. The appeal fails and is dismissed with costs which will include fees in this Court on the higher scale.
9. Appeal dismissed.