GANPATI UKA KOSHTI Vs. YADAO SHRAWAN

JUDGEMENT

(1.) THIS is plaintiffs' appeal from the reversing judgment of the Second Additional District Judge, Nagpur, in Civil Appeal No. 26-A of 1938, delivered on 16th August 1938. The suit out of which this appeal arises was one to enforce a mortgage dated 26th July 1934 executed by one Govinda, who was defendant 1 in the trial Court. The simple case has become complicated by reason of the facts which follow. In Civil Suit No. 1130 of 1929 one Goma and his brother Gangamm obtained a decree against Ganba Daji. In execution of that decree they attached he property comprised in the mortgage deed in suit. The mortgagees as well as the mortgagor Gavin a filed separate objections to the attachment. Govinda claimed the property as his own and the mortgagees asked for the property being sold subject to their mortgage. Their objections were dismissed the attached property was sold as being the property of Ganba Daji. It was purchased by one Masha, the father of respondents 1 and 2. The objection.; were dismissed on 27th June 1936 and the suit out of which this appeal arises came to be filed on 14th June 1937 against the mortgagor Govinda the auction purchaser Masha who is now represented by respondents 1 and 2. The suit was contested mainly by respondents 1 and

(2.) THEIR case was that the mortgaged property had really belonged to Ganba Daji but that he had executed a nominal and colourable sale deed in favour of Govinda (the mortgagor) with a view to defraud the creditors. Another round of contest was that in the absence of any claim such as was contemplated under Order 21, Rule 63, Civil P.C., the suit as one for enforcing the mortgage was not maintainable. The trial Court overruled the respondents' plea that Ganba Daji's sale in favour of Govinda was bogus and inoperative. It also rejected the contention based on the terms of Order 21, Rule 63, Civil P.C. The result was that a decree was passed against the mortgagor Govinda and the subsequent auction purchasers the respondents. Govindia acquiesced in the decision but the respondents preferred an appeal. The lower appellate Court upheld their contention that the suit was not maintainable as it was not in terms of Order 21, Rule 63 of the Code and further that the suit being one for enforcing the mortgage could not proceed against the respondents who asserted a. paramount title. The consequence was that the suit was dismissed. 2. The main question in this case is whether the suit ought to fail in consequence of the omission on the part of the plaintiffs to ask for a declaration that the property belonged to their mortgagor Govinda. There can be no question that the plaintiffs were bound to establish their claim which they asserted, in the executing Court in view of the dismissal of their objection. In their plaint they clearly disclosed the fact of their having filed an objection to the attachment and the dismissal of their objection. But in the prayer clause they did not in express terms ask for a declaration that the property belonged to their mortgagor and that he was entitled to mortgage it. It may be remarked that the plaintiffs, on the objection raised by the defendants, sought to rectify their mistake by applying for an amendment of their plaint. That application was, however, rejected by the trial Court presumably because it thought that no amendment of the plaint was necessary. Although the plaintiff did not in express terms ask for a declaration such as contemplated by Order 21, Rule 63, Civil P.C., they set out the relevant facts and asserted that the respondents who were subsequent auction purchasers were liable to pay the mortgage debt. In para. 6 (D) of the plaint they ask for such relief as the Court would deem it proper to grant. It appears to me that although the relief of declaration was not expressly asked for, that prayer is implicit in the challenge thrown out by the mortgagees in the plaint that in spite of the dismissal of their objection on 27th June 1936 they had a right to enforce the mortgage against the respondents who were the auction purchasers. Their suit was filed within one year's period provided by Article 11, Limitation Act.

(3.) IN Basivi Reddi v. Ramayya A.I.R. 1917 Mad. 393 the suit was for compensation for the value of the goods wrongly sold in execution in spite of objection and it was held that the expression to "establish" a right means something more than to "declare" a right and that it implied necessarily everything that was necessary to secure the proper enjoyment of the right. The contention that the claimant could not combine his claim for damages with one for a declaration of his right was rejected on the view that Order 21, Rule 63, Civil P.C., did not contemplate a suit for a mere declaration. It may be conceded that in these two cases there was a relief for declaration claimed in express terms, but that was not the crucial point for decision. If it is open to unsuccessful claimant or objector to ask for consequential relief and an operative decree, the mere failure to ask for an explicit declaration would not make the suit any the less a suit under Order 21, Rule 63, Civil P.C., if such a declaration is necessarily involved in the granting of the consequential relief. It is well known that in cases when the plaintiff asks for possession or injunction he is not under an obligation to ask for declaration as a distinct relief. He pays court-fees on the value of the consequential relief because the declaration of his right is a necessary incident of the claim for an operative decree.