DUA, J. - (1.) THE following pedigree -table would be helpful in understanding the dispute in the present appeal: DEVI DITTA MAL _______________________|_____________________ | | | | | Bua Das Thakar Dass Ram Chand Mehr Chand Smt. Durga Devi __________________|_________________ (Defendant No. 1) | | | Daulat Ram Vidya Dhar Shanti Parkash (Defendant No. 2) (Defendant No. 3) (Plaintiff) Thakar Dass mortgaged the land in dispute measuring 119 Kanals and 16 marlas described in bead -note (A) to the plaint by a registered mortgage -deed in favour of his sister Durga Devi defendant No. 1 for a sum of Rs. 2,500/ -. After his death Durga Devi mortgagee instituted a suit on the 10th of July 1946 against Shanti Parkash, Vidya Dhar, Daulat Ram, and their mother Khem Kaur, as the legal representatives of Thakar Dass deceased, for the recovery of mortgage money, which was decreed on the 21st of August, 1948 under a compromise, the amount decreed being Rs. 2,500/ - payable by instalments and in case of default the whole amount being recoverable by sale of the mortgaged property. Default having been committed, execution was sued out and in those proceedings the decree -holder mortgagee herself purchased the mortgaged land for a sum of Rs. 2,000/ - on the 11th ofJanuary, 1950. This sale was confirmed On the 20th of May 1950 and sale certificate granted on the 7th of October of the same year. For the balance of the decretal amount she obtained a personal decree against the legal representatives of Thakar Dass and again took out execution; in these proceedings she attached the land described in head -notes (B) and (C) of the plaint as property belonging to Thakar Dass.
(2.) SHANTI Parkash objected that Thakar Dass had only one -fourth share in the property mentioned in the headings of the plaint, and that one -fourth share therein belonged to Mehr Chand, a brother of Thakar Dass, who mortgaged his share, in the entire land in dispute, to Shanti Parkash for a sum of Rs. 3,000/ - on the 5th of October, 1953 by means of a registered mortgage -deed. Durga Devi, it was contended, could not proceed against the one -fourth share of Mehr Chand,and that in any case he (Shanti Parkash) was entitled to keep his mortgagee rights in the entire land intact. The Court sale in favour of defendant No. 1, according to the plaintiff, could, not affect his rights. These objections which were raised by Shanti Parkash under Order 21, Rule 58, Code of Civil Procedure, were rejected with the result that he instituted the suit out of which the present second appeal has arisen. In the suit he sought a declaration to the effect that he is mortgagee with possession of one -fourth share of Mehar Chand in the entire land in dispute for a sum of Rs. 3,000/ - and that the sale of that share in the land described in head -note(A) should not affect his rights; it is further claimed that the execution against Mehar Chand's one -fourth share in the land described in head -notes(B) and (C) of the plaint without reserving his mortgage money is also null and void and should not affect his mortgagee rights. Vidya Dhar defendant No, 3 did not put in appearance in spite of service and defendant No. 2 Daulat Ram appeared but did not file any written statement. Smt. Durga Devi defendant No. 1, however, repudiated the plaintiff's claim and did not admit that Mehar Chand had any share in the land in question or that he had mortgaged it with the plaintiff as claimed by him. Bar of constructive res judicata as well as under Section 47, Code of Civil Procedure, were also pleaded. Two main issues were framed by the trial Court: (1) Whether the plaintiff is a mortgagee of the property in suit; if so, for what amount? and (2) Whether the suit is barred by Section 47, Code of Civil Procedure, or by constructive res judicata? The Court of first instance came to the conclusion that Mehar Chand had one -fourth share in the entire land in dispute and that he had mortgaged with possession his share of the land with the plaintiff for a sum of Rs. 3,000/ -. Under issue No. (2) it found the suit not to be barred by the rule of constructive res judicata, but the bar under Section 47, Code of Civil Procedure, was upheld. The Court placed reliance on Muhammad Iqbal v. Labha Mal, AIR 1930 Lah 1068 in support of its view.
(3.) ON appeal the learned Additional District Judge upheld the view of the trial Court with respect to the applicability of Section 11, Code of Civil Procedure, but as regards Section 47 of the Code also he held that the suit was not barred under the said provision. In support of his view the learned Judge relied on Fazal Ilahi v. Firm R.B. Sabel and Co., AIR 1935 Lah 549, Lloyds Bank Ltd., Lahore v. Rehmat Bibi, AIR 1939 Lah 178 and Dareppa v. Mallappa, AIR 1947 Bom 307.;